Highlights

  • Generally, employers are within their rights to prohibit access to their property by nonemployee union agents.
  • However, once an employer permits access to its property to other nonemployees, it cannot discriminate against nonemployee union agents by denying them similar access.
  • In Kroger Limited Partnership I Mid-Atlantic, the National Labor Relations Board (NLRB) clarifies what constitutes similar access in scaling back a prior Board expansion of nonemployee union access.

In NLRB v. Babcock & Wilcox, Inc., decided in 1956, the U.S. Supreme Court provided two exceptions to the general rule that an employer cannot be compelled to open its property to union organizers. The first exception applies when there are no other means for communicating with the target employees, as, for example, where they live on the employer's property for extended periods with limited access to the outside. The second, at issue in Kroger Limited Partnership I Mid-Atlantic, applies when an employer has opened its premises to nonemployees, in which case, the employer cannot discriminate against nonemployee union agents and must give them similar access.

The issue in Kroger involves what constitutes similar access, and a National Labor Relations Board (NLRB) majority of three, with one dissent, retreated from an expansion of the definition of discrimination that had been in existence for about 20 years. In so doing, the Board on Sept. 6, 2019, made it clear that a union's attempt to establish the right to have access to an employer's property based upon the employer's having provided access to other nonemployees in the past must be based upon evidence that the prior access involved the same nature of activity while on the employer's property as that sought by the union. Thus, an employer's allowing access to its property for charitable, civic or commercial solicitations does not, the Board held, require allowing nonemployee union agents to have access for organizing or urging boycotts against the employer. Rather, unless it can be established that the employer has permitted access to its property for organizational activities by nonlabor groups such as fraternal societies or religious organizations, the employer will be within its rights to restrict access to nonemployee union agents seeking to gain access for organizing activity.

The Board noted that Kroger did not have any written policy regarding requests for access to its property, but the testimony of several store managers established that there was an unofficial policy of reviewing such requests and deciding upon each request, most of which were for charitable or civic purposes, and none of which were for organizational or protest activities. Although the Board obviously found in favor of the employer's removal of a nonemployee union agent from its premises on these facts, employers might find it worth considering formalizing such a policy, especially if an employee handbook or other collection of written policies already is in existence. And, of course, even with a clear policy, it is most important that the policy be enforced without any lapses that would undermine it.