R. Eddie Wayland, TCA Legal Counsel
In a recent Legal Comment article, we discussed how the National Labor Relations Board (NLRB) went back to following a rule established by the United States Supreme Court, holding that an employer can bar any nonemployee from soliciting its employees, including union organizers, so long as they bar all other nonemployees from similar activities. Relatedly, the NLRB has continued its trend protecting employers’ property rights and has now ruled that employers may bar union representatives from their property even though they have allowed other third parties to engage in civic, charitable or commercial solicitations there.
A union representative entered the parking lot adjoining one of the Employer’s stores that was part of a larger shopping center. There he solicited the Employer’s customers to sign a petition protesting the Employer’s decision to close the store and to transfer union members to stores outside the area. The Employer responded to this action by calling the local police and asking them to stop the Union’s solicitation. Shortly thereafter, the police arrived on the scene and confronted the Union representative who immediately ceased his solicitation and left the Employer’s premises. The Union then filed an unfair labor practice charge against the Employer, alleging that its ejection of the Union representative and its banning of union solicitation was discriminatory because the company had previously allowed other third parties to engage in civic solicitations there. According to the Union, this disparate treatment interfered with employees’ rights under the National Labor Relations Act (the Act).
The charge alleged that the Employer violated Section 8(a)(1) of the Act by: (1) prohibiting, under the no-solicitation/no-loitering policy in its lease, nonemployee union representatives from soliciting the Employer’s customers, in the parking area adjacent to the Employer’s facility, to sign a petition; (2) demanding that the union representatives leave that area; and (3) calling the police to remove the union representatives from that area. An administrative law judge found that the Employer violated Section 8(a)(1) as alleged and ordered the Employer to cease and desist from discriminatorily denying access to the Union and to post a remedial notice. The judge first determined that the union representative, in soliciting signatures for the Union’s petition in support of the Employer’s employees, was engaged in activity protected by the Act. Second, the judge found that the Employer possessed an undisputed property right to exclude individuals from its leased premises. Third, the variety of permitted nonemployee solicitations, and the fact that the Employer permitted the Salvation Army and Girl Scouts to solicit donations and sell items for “weeks at a time each year,” the judge found that the Employer unlawfully discriminated against the Union by regularly allowing various entities to solicit on its property while prohibiting the nonemployee union representatives from doing so.
On appeal, the NLRB began by noting that the United States Supreme Court has held that nothing in the Act compels an employer to grant nonemployee union agents access to its property. The only recognized exception, however, is that an employer may not discriminate against nonemployee union agents by excluding them from its property while allowing “other distribution” on the property. In Sandusky Mall Company, 329 NLRB 62 (1999), the NLRB applied this discrimination exception broadly to permit nonemployee union agents on an employer’s premises if the employer has allowed “substantial civic, charitable, and promotional activities” by other nonemployees/organizations.
Upon addressing the fact that many U.S. appellate courts have declined to enforce Sandusky Mall, the NLRB overturned its prior decision in Sandusky Mall and adopted a new standard for applying the discrimination exception. The NLRB determined that an employer unlawfully discriminates against nonemployee union agents only when it treats nonemployee activities that are similar in nature disparately. Additionally, the NLRB stated that this ruling applied equally to nonemployee organizing activity. Accordingly, the NLRB held that it would permit an employer to ban nonemployee access to private property for organizing purposes unless it had permitted comparable organizing activities by non-labor groups such as fraternal societies and religious organizations. However, civic, charitable or commercial solicitations by non-labor groups were not of the same or similar nature as union organizing. Therefore, that dissimilar type of solicitation would not license a union to engage in on-premises organizational activities over the objection of the property’s owner. The NLRB also determined that its ruling should be applied retroactively to cases currently pending.
Applying the new standard, the NLRB found that the Employer’s actions were lawful because the Employer had a fundamental property interest in its premises that allowed it to exclude the Union representative and because the Union’s solicitations were not sufficiently similar in nature to other on-premises charitable, civic or commercial activities that the Employer had previously allowed. The Union’s solicitation of the Employer’s customers which it banned and the civic activities it had previously permitted were not of the same or similar nature. Accordingly, the fact that the Employer elected to ban the former, while permitting the latter did not present a case of actionable discrimination.
The NLRB did note that the Employer 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.
In another win for employers, the NLRB continues to restore employers’ property rights and allow employers greater control over their private property. This provides another tool for employers to ensure that their businesses are not disrupted and unions do not gain traction. Although the Employer here did not have an official policy in regard to banning certain organizations from its property, it was fortunately saved by testimony regarding its unofficial, yet consistent, policy. Accordingly, it is advisable to consult with experienced legal counsel to formulate a formal policy to ensure against any possible unwarranted disputes.