Late last month, I wrote about how an employer balances its property rights against the rights of employees of third parties working on their worksite. The key takeaway from that blog post was that every employer needs to think about certain property-related issues if one of its contractors were to have a labor dispute with its employees. As I said then, it is always better to think through these issues before you are faced with the angry union organizers picketing your contractor in front of your facility.
The Labor Board has again provided some additional guidance on what companies can do when labor disputes erupt on their property. In a case involving Kroger, the Board found that the supermarket chain did not violate the law when it had a non-employee labor organizer removed from the parking lot at a Kroger location.
There has never been any doubt that a property owner has the right to enforce its property rights. However, the Kroger case addressed what happens if the employer allows others such as charitable organizations — Girl Scouts selling cookies, perhaps? — to use their property to solicit. Until now, this was a real problem and could force an employer into being a bit of a grinch by denying the Girl Scouts the opportunity to sell cookies in front of the store for fear that allowing them would force the employer to open up its property for the labor organizer. The Board found that the key here was whether or not the behavior of the labor organizer was a similar activity to what the Girl Scouts were doing. While the answer to this seems obvious, for many years under prior Labor Board law, it was not, and an employer who allowed the Girl Scouts to sell cookies on its property could not deny access to the labor organizer.
The current Board has now grasped the obvious distinction between Girl Scouts selling cookies and a labor organizer protesting the employer’s activities. Bottom line: Don’t allow others to protest or solicit for political purposes on your property without thinking about whether that may open your property to the labor organizer, because that may be comparable activity. But for now, let the Girl Scouts sell the cookies.