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Home / Commentary / Welcome back, Girl Scout Cookies: ‘Kroger’ and the NLRB

Welcome back, Girl Scout Cookies: ‘Kroger’ and the NLRB

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This winter, two groups visit your company on the same day: the Girl Scouts selling delicious cookies, and a labor union handing out flyers and soliciting employees.

The company has a carefully drafted non-solicitation policy, but may the business exclude one group while still permitting another? Should your company simply ban — or allow — both groups? While these groups are seemingly different, labor and employment counsel have historically advised organizations to be very careful in situations just like this one.

In the fall of 2019, the National Labor Relations Board issued a decision that may finally resolve this question for many companies across the United States.

In Kroger Limited Partnership, 368 NLRB No. 64 (Sept. 6, 2019), the NLRB said employers may bar non-employees from protesting against businesses on the employer’s property while still allowing non-protest activities such as solicitations for charitable donations or civic groups, including the sale of wonderful Girl Scout Cookies.

In the past, many companies were understandably hesitant to allow any visitors on their property for fear of disparate enforcement of a non-solicitation policy. Opening the door to one visitor meant allowing all visitors, including unions.

Before Kroger, the NLRB disagreed with the federal appeals courts and viewed a company’s prohibition of unions on business property while invoking a non-solicitation policy, yet still allowing other visitors, as discriminatory. Historically, this clash and lack of clear guidance led labor lawyers to advise their disheartened clients to bar the sale of these magnificent cookies.

christoph-matthewUnder the NLRB’s new standard, an employer discriminates against non-employee activities only when it treats activities that are “similar in nature” differently.

In Kroger, a grocery store asked local police to remove union representatives from its parking lot after the union began canvassing shoppers to stop using certain Kroger stores during a labor dispute. In response, the union filed an unfair labor practice charge under the National Labor Relations Act.

NLRA and NLRB

When a union is aggrieved and claims an NLRA violation, it is referred to as an unfair labor practice and must be filed with the National Labor Relations Board — the primary enforcer of the NLRA.

Unfair labor practices occur when an employer interferes with, restrains or coerces employees from exercising their rights guaranteed under the act, including the right to engage in concerted activity for the purpose of their mutual aid and protection.

The NLRA was enacted during the New Deal to protect employees against discrimination when they supported unions in already-unionized workplaces or in initial organizing efforts.

These rights vested with employees and not third parties; however, in 1949, the U.S. Supreme Court broadened the right and said that employers may not discriminate against unions — non-employees — by stifling access to their property.

If a business excludes a union but allows other groups onto the property, the NLRB has historically viewed such treatment as selective enforcement of a non-solicitation policy and therefore discriminatory in violation of the National Labor Relations Act.

The NLRB consists of a five-member panel located in Washington, D.C., a general counsel, and regional offices throughout the country. Massachusetts is located in Region One with offices in Boston.

After filing the charge with the appropriate regional office of the NLRB, the board will investigate whether a violation is believed to exist. If so, an administrative law judge will grant a hearing to address the charge and issue a ruling (in favor of the employee, union or employer).

Following the ruling, the parties may appeal to the NLRB, which will then either hear the case in full or delegate authority to a three-member panel. Following the NLRB’s decision, the parties have the option of appealing to the federal appeals court where the violation took place, where the petitioner does business, or the Court of Appeals for the District of Columbia.

Finally, the Supreme Court may grant certiorari if it believes that the filing petitioner was aggrieved by the appeals court’s decision.

In claiming an unfair labor practice and discrimination by the grocery store’s alleged selective enforcement of its non-solicitation policy in Kroger, the union pointed to the store’s other permitted visitors: the Girl Scouts, the Salvation Army, and groups promoting breast cancer awareness, among others.

That distinction between allowing one category of visitors — charitable, civic and commercial groups — versus non-employee protests and boycotts is important. The view of these groups has divided the NLRB and courts for decades, even before the Girl Scouts created the “Cinna-Spins Cookie,” a cinnamon oatmeal cookie that was discontinued after just one year likely because it was a health-conscious treat with fewer calories. But I digress.

Historical precedent

One of the first Supreme Court cases addressing discriminatory conduct by an employer in denying access to property by a union is NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949).

In Stowe Spinning, the court found an employer’s decision to refuse permission to a union organizer to use a company-owned hall where other similarly situated outside groups were provided access constituted a violation of the National Labor Relations Act. The court held that giving access to non-union groups while excluding unions is discrimination.

In NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105 (1956), the Supreme Court held that an employer has a property right to exclude union agents from its property with two specific exceptions: first, when the union is unable to access employees through other reasonable means; and second, when property rights are enforced discriminatorily (which was the issue in Stowe and again arose in Kroger).

Twenty years ago, the NLRB broadly interpreted Babcock in Sandusky Mall Co., 329 NLRB 618 (1999), and held that employers discriminate against non-employee union representatives if the employer bars unions from property while permitting access to charitable and civic organizations.

There, a shopping mall owner attempted to prevent a union from distributing handbills that urged mall customers not to patronize a particular store because the store had hired a non-union contractor. In response to the hand billing, the mall owner called local police to stop the union’s trespassing on mall property. The mall had previously permitted access for commercial, civic and charitable purposes, including cake auctions, craft shows and the United Way.

In ruling for the union, the NLRB said: “What the [employer] cannot do, however, is prohibit the dissemination of messages protected by the Act on its private property while at the same time allowing substantial civic, charitable, and promotional activities.”

To add to this complicated dynamic, the 6th U.S. Circuit Court of Appeals refused to enforce the NLRB’s decision in Sandusky Mall, and every federal appellate court asked to follow Sandusky’s broad interpretation of discrimination thereafter has declined.

The 6th Circuit said that to find alleged discriminatory conduct by companies allowing solicitation requires that discrimination be directed toward comparable groups or activities. With this in mind, it is easy to see that labor-organizing efforts and the sale of Thin Mints are simply not comparable.

Since Sandusky Mall, employers have hungered for clarity as comparable activities were not consistently defined. Lawyers advising these organizations continued to be puzzled when providing guidance to companies regarding enforcement of non-solicitation policies.

‘Kroger’ standard

The NLRB’s decision in Kroger provides a clear standard and expressly overrules Sandusky Mall, finding that “an employer discriminates within the meaning of the Babcock discrimination exception when it treats nonemployee activities that are similar in nature disparately,” and that the NLRB “may not find discrimination when the nonemployee activities permitted by an employer on its property are not similar in nature to those that it prohibited.”

The NLRB will not condone a business banning non-employee access for union organizational activities where the business fails to take similar steps with comparable organizational activities by non-labor groups, such as membership drives by fraternal societies and religious organizations.

Kroger also states that prior NLRB decisions after Babcock “improperly stretched” the concept of discrimination well beyond its accepted meaning in a manner that finds no support in Supreme Court precedent or the policies of the NLRA.

Under the NLRB’s new standard, an employer discriminates against non-employee activities only when it treats activities that are “similar in nature” differently.

For all Girl Scout Cookie lovers out there, the NLRB decision specifically holds that union protests or organizing activities are not comparable to charitable, civic or other commercial activities.

In other words, you may begin the parade of Girl Scout Cookie sales within your offices and in front of your stores without concern of successful claims for discriminatory enforcement.

Matthew E. Christoph is corporate counsel at Bright Horizons Children’s Centers based in Newton. The views expressed above are his own and do not express those of his employer.

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