Friday, September 6, 2019
Today, the NLRB released another decision placing employer's property interests above NLRA rights. This time, in Kroger Ltd. Partnership, the NLRB addressed when an employer can exclude union and other nonemployees from its property, even though it lets other groups solicit in the same place. Like a lot of situations, the employer let the Girl Scouts, Salvation Army, Lions Club, and the Red Cross solicit on its property. But it prohibited a church group and a union that was encouraging a boycott of the store because of a labor dispute (a "primary boycott" which is protected activity under the NLRA). At issue was whether excluding the union was unlawful.
This is just a quick take, so I won't get too far into the weeds (those who want more, can check out this chapter). But the short version is that an employer can usually exclude nonemployees from its property, unless it does so in a "discriminatory" fashion. The question is what does "discrimination" mean? As the linked chapter describes, there are a lot of ways to define discrimination and the NLRB in Kroger takes a very narrow--i.e., pro-employer--view:
Under the standard we adopt today, to establish that a denial of access to nonemployee union agents violated the Act under the Babcock discrimination exception, 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 in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.
Sound familiar? It should (although the Board didn't recognize the connection). This is very similar to the definition of "discrimination" the NLRB used in Register-Guard, which basically adopted the Seventh Circuit's holding that "the concept of discrimination involves the unequal treatment of equals":
[I]n order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees
Register-Guard was the decision where the Board said that employees lacked a right to use employers' email. Later, Purple Communications reversed that part of the decision, but (oddly to my mind), it didn't touch the definition of discrimination. At the time, I predicted that the definition would spread to other contexts. I was a few years too early, but that's what I view as happening in Kroger. Although, to be fair, the standards aren't identical, as the NLRB in Kroger does explicitly reject the Second Circuit's standard that defines discrimination entirely on whether Section 7 communications are treated worse than non-Section 7 communications. That said, Kroger and Register-Guard both emphasize grouping of communication of a "similar character."
Also of note is footnote 5, where the Board distinguishes handbilling for a food drive versus a union handbilling to boycott the store. According to the NLRB, they're different because their "purposes" are different. Although one can try to shoehorn that statement as just differentiating purely communicative speech versus "commercial" union speech that has traditionally had fewer First Amendment protections, it sounds an awful lot like unconstitutional subject-matter discrimination. That's particularly true given how robust the Supreme Court's recent First Amendment jurisprudence has been recently. This case could be a test whether that jurisprudence applies equally or only when used against unions.
And let's be clear about the practical implications. If an employer has half a brain (or a quarter of an attorney's brain), it can easily come up with a classification that is sure to exclude unions, while allowing a lot of other organizations. For instance, "we don't allow 'membership organizations' to solicit." The Board doesn't even seem to require that classification to be in place before litigation--it's enough for the employer to come up with the line-drawing post-hoc. It's also nonsense under the NLRA. These cases are under Section 8(a)(1), which does NOT require intent on the employer's part. The "discrimination" exception exists because it undermines the employer's argument that the reason its excluding the union is for valid business purposes. Thus, if they allow Girl Scouts and a host of other groups, we should be very wary when they all of sudden claim that union solicitors are a problem. In that case, it's pretty clear that the problem is that it's a union soliciting, not the actual solicitation. And that's not a valid reason under the NLRA.
Also, more generally, this is another weight on the side of employer property interests, which are increasingly inhibiting employees' NLRA rights. Not the first time for sure, but it's disconcerting how much the NLRB (and, to be fair, the Supreme Court) has raised property interests, which are largely the province of state common law, over the federal statutory rights of employees.