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NLRB permits employers to eject non-employee union agents from their property

Reversing a 1999 decision, Sandusky Mall Co., the Board upheld an employer’s right to eject non-employee union agents from its premises, even though it had routinely granted other non-employees’ permission to solicit on the same premises for “civic, charitable and promotional activities.” In doing so the Board held that a union’s presence to solicit customers to join a boycott is entirely dissimilar from Girl Scout cookie sales, firefighter boot drives, Salvation Army drives, Lion’s Club activities, Red Cross blood drives and church activities. Employers may now comfortably permit such other activities without worry that they could be used by union activists to justify the union’s presence.

The Board’s ruling not only reinstated the exception permitting employers to treat civic, charitable and promotional activities” differently from unions but suggests the Board will now require an even higher showing for unions. The Board held that the new burden of proof will require the union (and NLRB General Counsel) to prove that the employer allowed “comparable organizational activities.” The Board did not give examples of what might be considered “comparable organizational activities.”

Source: Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019).