Property Lines No. 2: Where Charity Meets Labor Rights
Late last month, I wrote about how an employer
balances its property rights against the rights of employees of third parties
working on their worksite. The key takeaway from
that blog post was that every employer needs to think about certain property-related
issues if one of its contractors were to have a labor dispute with its
employees. As I said then, it is always better to think through these issues
before you are faced with the angry union organizers picketing your contractor
in front of your facility.
The Labor Board has again provided some additional
guidance on what companies can do when labor disputes erupt on their property. In
a case involving Kroger, the Board found that the supermarket chain did not
violate the law when it had a non-employee labor organizer removed from the
parking lot at a Kroger location.
has never been any doubt that a property owner has the right to enforce its
property rights. However, the Kroger case addressed what happens if the employer
allows others such as charitable organizations — Girl Scouts selling cookies,
perhaps? — to use their property to solicit. Until now, this was a real problem
and could force an employer into being a bit of a grinch by denying the Girl
Scouts the opportunity to sell cookies in front of the store for fear that allowing
them would force the employer to open up its property for the labor organizer. The
Board found that the key here was whether or not the behavior of the labor
organizer was a similar activity to what the Girl Scouts were doing. While the
answer to this seems obvious, for many years under prior Labor Board law, it was
not, and an employer who allowed the Girl Scouts to sell cookies on its
property could not deny access to the labor organizer.
The current Board has now grasped the obvious distinction
between Girl Scouts selling cookies and a labor organizer protesting the
employer’s activities. Bottom line: Don’t allow others to protest or solicit
for political purposes on your property without thinking about whether that may
open your property to the labor organizer, because that may be comparable
activity. But for now, let the Girl Scouts sell the cookies.
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