Union Organizers’ Activities May Be Barred When Charitable Solicitations Are Allowed


Allen Smith, J.D. By Allen Smith, J.D. September 10, 2019

​Businesses that permit charities to seek contributions on their property may bar union organizers who aren't employees from engaging in union activity in their parking lots, the National Labor Relations Board (NLRB) decided Sept. 6, overruling a prior decision that was two decades old. This different treatment between charities and labor organizers isn't unlawful discrimination, the board determined. But a dissenting member of the board said the ruling conflicted with Supreme Court case law.

In Kroger Limited Partnership I MidAtlantic, 368 NLRB No. 64, the board held that an HR professional and store manager at a Kroger grocery store in Portsmouth, Va., could lawfully ask a union organizer to stop soliciting customers to sign a petition in Kroger's parking lot. The petition opposed the company's decision to transfer the employees of the unionized store, which was closing, to unionized sites more than 25 miles away, rather than to two new, closer, nonunionized stores. It included a statement that those signing the petition would not shop at the new stores unless the workers at the closing site could work at the new stores with all the benefits they have as union members. The union organizer refused to stop soliciting customers to sign the petition until the police asked him to stop.

An administrative law judge ruled that the employer violated the National Labor Relations Act (NLRA) by demanding that the union representative leave and calling the police to remove him from the premises. The administrative law judge noted that the store permitted the Salvation Army and Girl Scouts to solicit donations and sell items for weeks at a time each year. The company unlawfully discriminated against the union by regularly allowing these entities to solicit on its property while prohibiting the nonemployee union representatives from doing so, the administrative law judge ruled.

The NLRB reversed. Although the board previously had applied an expansive view of what constitutes a discriminatory denial of access in Sandusky Mall Co., the board overruled this prior decision. In Sandusky Mall, the NLRB found that there was no meaningful difference between nonemployee and union agents' activities on the one hand, and charitable, civic or commercial undertakings on the other. Appeals courts have criticized Sandusky Mall Co., the board emphasized. It defined discriminatory denial of access as when companies grant access to organizations engaged in activity similar to unions but deny access to unions. Charities aren't engaged in similar activity, according to the NLRB.

The board further noted that its decision was consistent with its announced intent to engage in future rulemaking on access to an employer's private property. "It would be unfair to the parties to this case to make them wait for a resolution of their dispute until the conclusion of a rulemaking that cannot resolve it."

Board member Lauren McFerran dissented, saying the board should have decided the case under longstanding precedent and that its ruling contradicted a Supreme Court ruling—Stowe Spinning. In Stowe Spinning, the Supreme Court decided that an employer violated the NLRA by permitting outside community groups to use an employer-owned meeting hall, while prohibiting its use by union organizers. McFerran said the board's recent decision came "dangerously close to eliminating the discrimination exception" to the general rule that property owners may exclude union agents from their premises.

We've gathered articles from SHRM Online and other trusted media outlets on the property rights of employers when there is union activity.

Board Limited Union Activities in Public Spaces on Employers' Property

On June 14, the NLRB ruled that employers can ban nonemployee union representatives from organizing in public spaces on their property so long as their policies are applied consistently to all nonemployees. The board overturned its precedent, which previously held that nonemployee union representatives could access an employer's public spaces if they weren't disruptive. Previously, nonemployee union representatives could enter places where the public was invited, such as restaurants and hospital cafeterias, in privately owned buildings to solicit union support and distribute literature.

(SHRM Online)

Businesses Welcome Decision

Employers welcomed the June decision, UPMC, as eliminating an intrusion to their property rights that they long have criticized and that federal courts have rejected. Businesses now are in control of what activities may take place in their own facilities. Companies should review their policies on access, solicitation and distribution with attorneys to ensure they are providing the desired protections.

(The National Law Review)

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

Contractors Lawfully Blocked from Leafleting on Site

In another recent decision overturning prior board law, the NLRB ruled that businesses can prevent their contractors from distributing union leaflets on company property. But employers' own employees still must be allowed to distribute leaflets onsite in some instances.

(SHRM Online)

Educate Managers About Union Access-to-Premises Rules

Managers need to know when union representatives and union-organizing employees can access company property. Barring them could result in charges of unfair labor practices, even against nonunionized employers. Employers can prohibit off-duty workers, including those who are participating in union organizing, from being on the premises. The employer can bar on-duty workers from encouraging others to join unions or distributing union pamphlets if the policy is applied in a nondiscriminatory manner and the employees aren't on breaks.

(SHRM Online)


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