United States: The NLRB Rules That Employers May Bar Union Representatives From Their Property Even Though They Have Allowed Other Third Parties To Engage In Civic, Charitable Or Commercial Solicitations There

Setting clear and reasonable standards for taking access to an employer's private property is high on the National Labor Relations Board's agenda. Not only is the Board talking about issuing formal rules in this area, but the Agency is cranking out new access decisions left and right, the most recent being its recent decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, dated September 6, 2019 (Kroger). The issue presented there was whether the National Labor Relations Act (NLRA or Act) requires an employer to grant nonemployee union representatives access to its premises to solicit the employer's customers if it has also permitted other third parties to engage in civic, charitable or commercial solicitations there. The Board answered this question in the negative.

The facts in Kroger are straightforward. In April, 2015, a union representative entered the parking lot adjoining Kroger's store No. 538 in Portsmouth, Virginia where he solicited the grocer's customers to sign a petition protesting Kroger's decision to close the store and to transfer union members to stores outside the area. Kroger responded to this trespass by calling the local police and asking them to stop the Union's solicitation. Shortly thereafter, the police arrived on the scene and confronted the Union official who immediately ceased his solicitation and left Kroger's premises. The Union then filed an unfair labor practice charge against Kroger, alleging that its ejection of the Union solicitor and its banning of union solicitation was discriminatory because the company had previously allowed other third parties to engage in civic solicitations there. According to the Union, this disparate treatment interfered with employees' rights under the Act.

Reversing an administrative law judge's decision finding a violation and overturning the established Board precedent upon which she relied, Sandusky Mall, 329 NLRB 618 (1999), the Board's three Republican members dismissed the Union's disparate treatment claim. They found that Kroger's actions were lawful because the Company had a fundamental property interest in its premises that allowed it to exclude the Union's solicitor and because the Union's solicitations were not sufficiently similar in nature to other on-premises charitable, civic or commercial activities that Kroger had previously allowed. In the Board's view, discrimination exists only when like or similarly situated cases are treated in a dissimilar manner. The Union's solicitation of Kroger's customers which it banned and the civic activities it had previously permitted were not of the same or similar nature. Accordingly, the fact that Kroger elected to ban the former, while permitting the latter did not present a case of actionable discrimination. Moreover, the Board went one step further, stating that its approach in Kroger, a case that had nothing whatsoever to do with union organizing, applied equally to nonemployee organizing activity. Accordingly, the Board said that it would also permit an employer to ban nonemployee access to private property for organizing purposes unless it had permitted comparable organizing activities by non-labor groups such as fraternal societies and religious organizations. However, civic, charitable or commercial solicitations by non-labor groups were not of the same or similar nature as union organizing. Therefore, that dissimilar type of solicitation would not license a union to engage in on-premises organizational activities over the objection of the property's owner.

TAKEAWAYS:

  1. Kroger is the third very recent Board decision to issue protecting employer property rights and limiting access by nonemployees and, in some limited instances, by employees. For example, in UPMC, 368 NLRB No. 2, dated June 14, 2019, the Board overturned other longstanding case authority granting unions a right of access to an employer's "public spaces," holding that an employer did not violate the Act when it ejected nonemployee union representatives from its cafeteria because the law does not require an employer to permit the use of its facility for third party organizing except when other avenues of communications with employee are not readily available. If you would like to read UPMC, please click here. Likewise, in Bexar County Performing Arts Center Foundation, 368 NLRB No. 46, dated August 23, 2019 (Bexar), the Board again overruled prior case law and held that a property owner need not grant access to off-duty employees of an onsite contractor to engage in a public demonstration against their employer, unless, again, no other avenue for communication with their desired audience exists. Bexar is available for viewing by clicking here.
  2. Kroger is welcome news for employers operating in most states where private property rights trump union interests and property owners have an unbridled right to exclude whoever they want to from their property. Moreover, Kroger draws a clearer line between civic, charitable and commercial solicitations which do not open an employer up to unwanted union solicitation and organizational activities by non-labor groups that may give rise to an obligation to grant access to the employer's property. Employers in these majority states and who honor the lines drawn by the Board in Kroger need not fear opening their premises to unwanted union solicitation.
    On the other hand, in a small number of jurisdictions, including California, statutes and case law operate to subordinate an owner's property rights to union interests by granting unions a right of access in the context of labor disputes and by stripping state courts of the power to enjoin or regulate union trespass in a variety of settings. Whether such state laws are constitutional remains an open question. However, unless and until such union-friendly state law is either repealed or invalidated, Kroger is not likely to change things in those minority jurisdictions.
  3. Likewise, that the Board required a sufficient likeness or similarity between banned and permitted solicitation before it will find disparate treatment is likely to spill over into other kinds of cases presenting issues of discrimination. Thus, absent direct evidence of an employer's discriminatory intent, a mere differential in treatment may not be legally sufficient to establish disparate treatment discrimination. The General Counsel's failure to establish that required sameness or similarity may, therefore, be grounds for a finding of "no discrimination."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
10 Dec 2019, Panel, San Francisco, United States

Intellectual property (IP) may be one of your company’s most valuable assets in today’s market, underscoring the need for in-house counsel to carefully consider strategies for choosing between patent and trade secret protection for particular assets.

11 Dec 2019, Conference, Washington, United States

The annual Enforcement, Litigation, and Compliance Conference brings together industry, regulators, attorneys, litigators, academics, and consultants to discuss trends and issues in enforcement and compliance, the latest developments in both civil and criminal litigation, and recent cases and settlements.

12 Dec 2019, Speaking Engagement, San Diego, United States

This forum will feature three innovators in the law for a discussion on some of the legal frameworks being challenged, influenced, and redefined by the distributed technology.

Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions