NLRB Continues Expansion of Employer Private Property Rights


In Kroger Limited Partnership, the National Labor Relations Board issued its third major decision concerning employer private property rights. The Board established a new standard concerning when an employee may ban or prohibit access to its property by a nonemployee union agent to engage in protest or other organizational activity.

Background: In April 2015, a union representative accessed a parking lot adjoining a Kroger store in Portsmouth, Virginia. The union representative solicited store customers to sign a petition protesting the company’s decision to close the store and transfer the union-represented employees to stores outside the area. Kroger contacted the police. After the police arrived, the union representative left the premises. The union filed an unfair labor practice charge against Kroger, alleging that its ejection of the union representative was discriminatory because Kroger permitted other third parties to engage in civic solicitations on its property, and such disparate treatment interfered with employees’ Section 7 rights under the National Labor Relations Act (NLRA).

The Board’s Ruling: The Board held that an employer may deny access to nonemployees, including union representatives, seeking to engage in protest activities on its property if the employer also bans comparable organizational/protest activities by groups other than unions, even if it permits nonemployee access for a wide range of charitable, civic, and commercial activities not similar in nature to protest activities. In short, to prove a violation of the National Labor Relations Act, the General Counsel must prove that an employer denied access to nonemployee union agents “while allowing access to other nonemployees for activities similar in nature to those which the union agents sought to engage.” This holding overruled the Board’s 1999 decision in Sandusky Mall, which held that an employer violates the NLRA when it prohibits nonemployee union agents access to its private property for any purpose if the employer permitted other third-party access for charitable, civic, or commercial purposes.

Applying this new standard, the Board held that Kroger did not violate the NLRA. The Board reasoned that Kroger had never permitted nonemployees to access its property to engage in protest activities comparable to the boycott solicitation at issue in this case.

Takeaway: As in UPMC (discussed here) and Bexar County Performing Arts Center (discussed here), the Board continues expanding employer private property rights. Employers may now prohibit nonemployee union agents from accessing its property for organizational purposes even if it permits other organizations to use its property for charitable, civic, and commercial activities, provided the employer does not permit other third parties to engage in organizational conduct similar to that which the nonemployee agent seeks to engage. In short, the Board will look at the activity’s purpose when determining whether activities are “similar in nature.”