November 07, 2019


Perhaps you’ve taken a trip to the grocery store recently, and found a Boy or Girl Scout troop selling popcorn or cookies. Generally, store owners have no problem with those types of groups setting up on their property to promote good causes, community togetherness, and entrepreneurial spirit. But what happens when a union decides to accost customers in the parking lot to encourage them to boycott the very store they are visiting? Can property owners allow one type of solicitation and prohibit another? This question has been considered by the National Labor Relations Board (NLRB or Board) in the past, but a recent decision helped clarify this issue.

In this case, lengthily titled “Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union Local 400” (NLRB Case 05-CA-155160), a Kroger store and the union representing its workers were in a dispute over which stores the workers could transfer to when the store where they currently worked was closed. A new Kroger store had been built nearby, necessitating the closure, but the union objected when the workers were offered transfers to existing stores excluding the newly built one. As this issue was being negotiated, the union decided to send a member (who did not work at the store in question) into the parking lot of the store to actively persuade customers to boycott Kroger stores over this issue. Store management eventually had to summon police to get this person to stop harassing customers.

The union then alleged that this was a violation of the National Labor Relations Act (NLRA), since they were being excluded from soliciting on store property while other groups (like the Boy Scouts) were permitted. The NLRA does not compel an employer to grant non-employee union agents access to its property, but there is an exemption created in the NLRB v. Babcock & Wilson, Inc. case that says an employer may not discriminate against non-employee union agents by excluding them from its property while allowing “other distribution.” However,, the scope of this “other distribution” exemption in Babcock was not defined. In a later decision, Sandusky Mall Co., the Board interpreted this exemption to mean that access for non-employee union members should be allowed if the employer had allowed substantial civic, charitable, and promotional activities by other non-employee groups. However, courts of appeals in various cases rejected that interpretation, leading the Board to rule that Sandusky Mall and all similar cases would be overruled. The new standard will be that an employer can bar access to non-employees (union or otherwise) as long as they have not given access to other non-employees to engage in a similar activity.

Specifically in this Kroger case, the Board rightly separated the “protest” activities of the union being denied access and the charitable, civic, and commercial activities being allowed to take place. Going forward, this standard should keep obnoxious union agents from intruding on your next grocery store run while allowing you indulge with a couple boxes of Thin Mints in support of your community.