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Kroger’s Discriminatory Enforcement of No-Solicitation Rule Violates NLRA

Last Friday, a National Labor Relations Board administrative law judge found that the grocery chain Kroger  unlawfully banned non-employee union representatives from distributing petitions in a store parking lot.  Kroger Mid-Atlantic LP, N.L.R.B. A.L.J., No. 5-CA-155160 (Sept. 9, 2016).

The issue arose after Kroger announced it was closing a location, but its workers were not offered transfers to new, non-unionized stores.  The workers were only offered positions in unionized stores located farther away.  The workers believed that Kroger had not offered transfers to the new stores in order to keep those stores’ workers union-free.  In protest, non-employee union representatives circulated a petition in the closing store’s parking lot, asking customers to boycott the new stores.  Store managers soon called the police to have the representatives removed from the premises.

According to the judge, the non-employee union solicitation was protected under the National Labor Relations Act (NLRA).  The judge found that, despite a no-solicitation clause in its lease, Kroger had allowed community groups, such as the Lion’s Club and the Salvation Army, to solicit donations and hand out information on store property.  The judge ruled that Kroger’s selective enforcement of the no-solicitation policy constituted discrimination under the NLRA because it “exclude[ed] union solicitation on its premises while . . . permitting civic solicitation activity.”

The judge also deemed Kroger’s decision to call the police “unprecedented.”  She noted that Kroger did not call law enforcement when a church group repeatedly sought donations on the property.  Calling the police in this instance, she wrote, emphasized that the Kroger had discriminated against union activity.

This case serves as a reminder that in general, employers may limit non-employee solicitation on their property. However, prohibiting union solicitation while allowing other solicitation on the property may violate the NLRA.  To avoid opening the door to unwanted union access, employers should ensure no-solicitation policies are enforced consistently and evenly against employees, non-employee groups, and union non-employees.

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