National Labor Relations Board OFFICE OF THE GENERAL COUNSEL Advice Memorandum - Upholds Limitations on Parking Lot Demonstrations

A BRIEF SUMMARY:

The NLRB has recently issued an Advice Memorandum limiting parking lot demonstrations at an employer’s facility.

In Wal-Mart Stores, Inc., NLRB Office of the General Counsel Advice Memorandum, No. 13-CA-95526, Released on August 23, 2013, the NLRB affirmed that an employer may have organizers removed from the property of an employer, despite the presence of off duty employees within the group.  In cases like this, employers should be concerned about a potential violation of the participating employee’s Section 7 rights for engaging and participating in protected concreted activities.  In this particular case, the employer’s actions were not considered a violation of the employee’s Section 7 rights.  Employers are cautioned that every situation or event is different and careful consideration must be given to the facts surrounding each specific event. 

The NLRB has long held that “off-duty employees and non-employee organizers have different rights of access to employer property for the purpose of solicitation and distribution of literature.  Off-duty employees have far more access rights to an employer’s premises for purposes of engaging in protected conduct than do union organizers because employees are not “strangers” to the property and the workplace is a “particularly appropriate place” for employees to communicate with one another regarding organizing.  The Board has repeatedly held that an employer cannot deny off-duty employees entry to its parking lots, gates and other outside nonworking areas “except where justified for business reasons.”  On the other hand, as a general rule, an employer may exclude non-employee organizers from its property.”

“Wal-Mart Stores, Inc., maintains a “Solicitation and Distribution of Literature Policy” that permits Associates “to participate in solicitation and/or distribution of literature outside [its] facilities during non-working time.” However, the Policy requires non-Associate individuals, groups, and organizations (including non-profit, charitable, service, and religious groups) who wish to solicit on the Employer’s property outside its facilities to first obtain permission from the Employer.” There was no evidence that the Wal-Mart had not uniformly enforced its policy.  

In this particular case, the question was what do we do when the campaign is being led by an off-duty employee and includes others that are not employees of the organization?

The NLRB Office of the General Counsel Advice Memorandum, No. 13-CA-95526, answers this question: 

The Memorandum states that an employer may lawfully use police officers or other legal means to remove non-employee demonstrators/organizers and their personal property from its parking lot.  “Consistent with the previously mentioned principles, “the Board had upheld Wal-Mart’s Solicitation and Distribution policy requiring non-employees to obtain prior approval from the store manager for their solicitations and to comply with “time, place, and manner” restrictions.”  The Board concluded that since the demonstrators were predominantly non-employee “OUR Walmart” organizers and congregated around a van emblazoned with the “OUR Walmart” logo, it was reasonable for the Employer to conclude that this was a non-employee demonstration, despite the presence of two of its employees.”  However, the employer had to continue to allow employee demonstrators/organizers to remain on the property.  According to the NLRB, these actions did not limit or interfere with an employee’s Section 7 rights, to engage in protected, concerted activity, despite the fact that, in this case, the employee was an integral part of the campaign.

The Advice Memorandum states that Wal-Mart lawfully used the police to enforce its valid Solicitation and Distribution Policy because it reasonably concluded that the demonstration constituted solicitation by an outside organization in violation of its lawful policy. While the action of the police did deprive the employees the use of the “OUR Walmart” minivan, it was found that Wal-Mart did not unreasonably conclude that the van was owned and operated by the third party organization because the van displayed the logo of the organization. As a result, it was recommended that the charge be dismissed, absent withdrawal by the charging party.

Employers are urged to be very cautious when addressing potential protected concerted activity on their property. The decision in this case decision was based primarily on the Employer’s enforced internal polices and the fact that the “Employer reasonably concluded that the demonstration constituted solicitation by an outside organization.”  

Therefore, it is also very reasonable to conclude that the result may have been far different if there had been a larger group of employees in the demonstration.

THE TAKE AWAY:

Facility owners, executives and HR professionals should:

Know with certainty the limitations of the facility owner’s property.  Especially those areas perceived to be public in nature, parking lot’s garages, lawn spaces, etc..

Develop and implement a reasonable HR policy for Solicitation and Distribution by both inside and outside groups.

As is the case with every HR policy that I advise clients on, be consistent in its application and enforcement. 

The Advice Memorandum is only 5 pages long and well worth the time to read.  Links to the NLRB Case and Advice memorandum can be found below.

The NLRB Case may be found here… 

The Advice Memorandum may be found here…