Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union Local 400

CourtNational Labor Relations Board
PartiesKroger Limited Partnership I Mid-Atlantic v. United Food and Commercial Workers Union Local 400.
Docket Number05-CA-155160
Decision Date06 September 2019

Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union Local 400.

No. 05-CA-155160

United States of America, National Labor Relations Board

September 6, 2019


John F. Ring, Chairman

The issue before us is whether the National Labor Relations Act required the Respondent to grant a nonemployee union agent access to its property to solicit its customers to boycott its store.[1] The Respondent undisputedly had a property right to exclude the union agent from its premises. See College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, 527 U.S. 666, 673 (1999) (“The hallmark of a protected property interest is the right to exclude others. That is one of the most essential sticks in the bundle of rights that are commonly characterized as property.”) (internal citation and quotation omitted). And, as a general matter, nothing in the Act compels an employer to grant nonemployee union agents access to its property. Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992); NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105, 112 (1956). Under an exception to that general rule, however, an employer may not discriminate against nonemployee union agents by excluding them from its property while allowing “other distribution.” Babcock & Wilcox, supra at 112. The scope of this Babcock discrimination exception-left undefined in Babcock itself-is at issue in this case.[2]

In Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied in relevant part 242 F.3d 682 (6th Cir. 2001), the Board interpreted the Babcock discrimination exception to require employers to grant access to nonemployee union agents for any purpose if the employer has allowed “substantial civic, charitable, and promotional activities” by other nonemployees. Id. at 622. Applying Sandusky Mall, the judge in this case found that the Respondent discriminated against the Union within the meaning of Babcock by permitting a variety of charitable and civic organizations, such as the Girl Scouts and the Salvation Army, to fund-raise on its property while ejecting the nonemployee union agent who entered its property to solicit the Respondent's customers to boycott its store.

Sandusky Mall and its progeny have been roundly rejected by the courts of appeals. Courts have consistently limited the Babcock discrimination exception to situations where an employer ejects nonemployee union agents seeking to engage in activities similar in nature to activities the employer permitted other nonemployees to engage in on its property. Moreover, in a case decided before Sandusky Mall and never relevantly overruled, the Board itself limited Babcock's discrimination exception the same way, stating that “a denial of access for Sec[tion] 7 activity may constitute unlawful disparate treatment where by rule or practice a property owner permits similar activity in similar relevant circumstances.” Jean Country, 291 NLRB 11, 12 fn. 3 (1988) (emphasis added).[3] After careful consideration, we agree with the reasoning of these courts and with the Board's interpretation of Babcock discrimination in Jean Country. Sandusky Mall 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 Act. Accordingly, we find that Sandusky Mall and similar cases should be overruled.[4]

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.[5] Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions. Because the General Counsel has not shown that the Respondent has ever permitted any nonemployees, whether affiliated with a union or not, to engage in protest activities on its premises comparable to the boycott solicitation at issue in this case, we shall reverse the judge's decision and dismiss the unfair labor practice complaint.


The Respondent, which is engaged in the retail sale of grocery items, operated a store (Kroger 538) in Portsmouth, Virginia, from at least 1997 until April 11, 2015.[6]Kroger 538 was located within a multi-tenant retail shopping center on a parcel of land leased by the Respondent from Sterling Creek Commons, Limited Partnership. The leased premises for Kroger 538 included a sidewalk in front of the store and an enclosed foyer at the customer entrance.

The shopping center had a parking lot, and Kroger 538 shared with its shopping center co-tenants a right of easement to the parking lot. There is no dispute that the landlord vested in the Respondent a sufficient property interest and the authority to enforce the lease agreement's “no solicitation/no loitering” rule. In relevant part, the lease agreement between the Respondent and the landlord stated:

To the extent not prohibited by applicable laws, the Parking Areas and Common Facilities shall be subject to a uniform “no solicitation/no loitering” rule, pursuant to which all soliciting, loitering, handbilling and picketing for any cause or purpose whatsoever shall be prohibited within the Parking Areas and Common Facilities. Either Landlord or Tenant may enforce said uniform “no solicitation/no loitering” rule, to the extent it can be done in a lawful manner, by excluding or removing persons engaged in soliciting, loitering, handbilling, or picketing from the Parking Areas and Common Facilities or by otherwise lawfully enforcing said rule. Ten ant shall have the right coupled with an interest, and is hereby expressly authorized by Landlord to enforce in a lawful manner said uniform “no solicitation/no loitering” rule within the Parking Areas and Common Facilities

Further, the landlord's representatives sent the Respondent a letter, dated March 25, 2014, regarding Kroger 538. In this letter, the landlord expressed concern with “continuous and smooth operation of the shopping center” and the prevention of “disruptive activities or nuisances that have a potentially adverse impact on our tenants and their customers, our shopping center and the community at large.” The letter further stated:

For the above purposes and to facilitate a prompt response to situations which may arise in conjunction with any protesting, demonstrating, picketing, hand billing, or related disruptive activities on the premises, the undersigned Landlord for the above referenced location(s) hereby states that, to the maximum extent permitted by law no person or organization (whether or not involving a labor union) shall be permitted to engage in such activities within the property limits owned by us, including that portion on which your store currently operates its business under the terms of our Lease, and any such person or organization shall be dealt with as a trespasser and removed from the property owned by us and/or leased by your organization. Landlord further agrees that should any such person or organization en gage in such activities on our property Landlord gives Kroger Limited Partnership I the authority to have police or other authorities, to the extent permitted by law, remove the trespassers from the property referenced

The record does not show that the Respondent maintained any written policies governing the handling of requests by outside organizations to access its property. However, the judge recounted the testimony of several former Kroger 538 managers that their unofficial policy or practice at the store was that organizations' requests to solicit on Kroger 538's property would be forwarded to the store manager for review, and that Kroger 538 store managers approved some groups' requests but denied other groups' requests. For example, one former Kroger 538 manager, Timothy Lynch, testified that during his approximately 10-month tenure at Kroger 538, he required an organization seeking to solicit or distribute on Kroger 538's property to submit a request on the organization's letterhead. He would then notify the organization that he had either approved or disapproved the request. Donati High, another former manager of Kroger 538, testified that when a group made a request to him, he asked it to submit the request in writing, and he would either approve or deny it. High further testified that he would favorably consider requests for “anything civic, like the local fire departments, military veterans, the Lions Club, those were typically the criteria, ” provided there were “available dates because you don't want to over-swarm the customers, people in the parking lot every day.”

The judge credited testimony establishing that the Respondent allowed several entities to pass out literature and/or sell goods on the sidewalk area on either side of the front entrance to Kroger 538. The Girl Scouts sold cookies for a week or more in the spring of every year; the Lions Club collected donations or sold items on two occasions; the Salvation Army collected donations during the weeks between Thanksgiving and Christmas each year; and a breast-cancer awareness group solicited donations, passed out literature, and sold items on one occasion. Also, on one occasion 4 or 5 years before the events at issue here, the Respondent permitted the American Red Cross to run its mobile blood drive in the...

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