NLRB Reverses Precedent, Paving the Way for Charter School Employers to Allow Charitable and Civic Solicitation Without Fear of Opening the Door to Nonemployee Union Solicitation
In a practice that is becoming increasingly familiar, on September 6, 2019, the NLRB overturned long-standing, union-friendly Board precedent governing employer's property rights. The Board's decision in Kroger v. United Food and Commercial Workers Union 400, changed the standard regarding nonemployee access, making it harder for the union to prove discriminatory treatment. The Kroger decision has significant and practical implications for many charter schools throughout the country, who often find themselves balancing competing interests when it comes to the enforcement of their non-solicitation/distribution policies.
Application to Charter Schools
The Kroger decision only affects charter schools that are subject to jurisdiction under the NLRA. Whether or not a charter school is subject to state or federal labor law is a legal question—and one that is frequently highly contested by the parties based on their goals and interests. For charter schools that are subject to the NLRA, the Board's decision is summarized below.
Precedent Under Sandusky Mall
Since the 1950s, the Supreme Court has recognized that while employers generally have the right to keep nonemployee union agents off of their property, under the NLRA, employers cannot discriminate against nonemployee union agents in the enforcement of those property rights. Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992); NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105, 112 (1956). Since 1999, the Board has taken a broad view on what qualifies as discriminatory treatment, consistently finding that when employers permitted solicitation by a variety of charitable and civic organizations – such as the Girl Scouts, Salvation Army or Red Cross – they were precluded from excluding nonemployee union agents from their property. See Sandusky Mall Co., 329 NLRB 618 (1999).
Since the Board's decision in Sandusky Mall, charter school employers throughout the country have often limited the extent to which they allow nonemployees onto their campuses for solicitations of any kind – including for charitable, civic and other purposes. That decision, however, is often in conflict with the culture many charter schools seek to cultivate, which encourages and supports civic, community and charitable engagement. Sandusky Mall and its progeny also made it risky for charter schools to bring in commercial vendors offering services that might interest or benefit their employees, such as outside financial planners or insurance brokers.
Kroger Overturns Sandusky Mall
Last Week's Kroger decision upends years of confusion and concern for charter schools grappling with the enforcement of their non-solicitation/distribution policies. Kroger holds that discriminatory enforcement can only be established when "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." Under this newly articulated standard, a charter school employer may deny certain nonemployee union activities on its property "while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar."
Essentially, if a charter school employer continues to ban nonemployees' organizational and protest activities on its property (i.e., by religious organizations or social/political groups), it can do so with respect to nonemployee union organization and protest activities. That holds true even if the charter school allows nonemployee access to its property for a host of other, non-similar activities. Charter schools must remain vigilant, however, in restricting nonemployee access for activities that may be deemed similar to union organizing or protests, including for example, membership drives or rallies tied to social or political movements.
Effect on Employee Activity
Notably, the Board's decision in Kroger relates only to nonemployee property access and does not change employee solicitation or distribution efforts. In fact, the Board specifically noted that the decision in Kroger "has no effect whatsoever on the right of employees to engage in Section 7 activity on their employer's premises." It will remain to be seen, however, whether the Board will adopt a Kroger-like approach in interpreting cases alleging discriminatory enforcement of a valid non-solicitation/distribution policy against employees (i.e., basing determinations on the nature of other employee actions permitted).
The Road Ahead
The Kroger opinion is the latest in a stream of decisions overturning Board precedent in favor of employers. In addition to releasing the Kroger decision last week, the Board also indicated that it may revisit the very broad scope of protected activity under the NLRA, inviting the submission of briefs on the standards governing employee use of profanity or racial slurs during union/concerted activity. Goldberg Kohn is closely monitoring decisions from the Board and will continue to provide updates with pertinent changes in the law.
If you have any questions regarding the effect of the Kroger decision or other recent NLRB decisions, or would like assistance in drafting a non-solicitation/distribution policy, please contact Meredith S. Kirshenbaum, Michael L. Sullivan, or Jon E. Klinghoffer
55 East Monroe Street, Suite 3300, Chicago, Illinois 60603-5792
The material in this client alert is based on information existing at that time. It should not be construed as legal advice or legal opinions based on any specific set of facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, an attorney-client relationship.
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