Employer Did Not Commit Unfair Labor Practice By Barring Unions From Soliciting On Its Premises While Permitting Solicitation By Certain Charitable Organizations

In Albertson’s Inc. v. National Labor Relations Board, Nos. 00-2359, 01-1002, 2002 WL 1901861 (6th Cir. June 20, 2002), the U.S. Court of Appeals for the Sixth Circuit concluded that an employer did not commit an unfair labor practice by barring nonemployee union representatives from soliciting on its premises, even while simultaneously permitting certain charities to solicit on the same premises.

THE FACTS OF THE CASE

Albertson’s has a written policy prohibiting any and all solicitations by non-employees on its premises. At certain of its stores, however, Albertson’s allowed various charitable organizations (including the Girl Scouts and the Salvation Army) to solicit donations on its premises.

At the same time and at the same stores, Albertson’s rejected requests to solicit donations on the premises by various other organizations, including political groups, lesser known charities, and all non-charities. Albertson’s also prohibited the distribution on its premises of handbills by representatives of the International Brotherhood of Teamsters (“Teamsters”) urging customers not to buy certain products sold by Albertson’s because the Teamsters were on strike against the manufacturer of those products. Likewise, Albertson’s denied access to its premises to non-employee business representatives of the United Food and Commercial Workers (“UFCW”) who sought to solicit Albertson’s employees to seek union representation.

THE PROCEDURAL HISTORY OF THE CASE

Both the Teamsters and the UFCW filed unfair labor practice charges against Albertson’s with the National Labor Relations Board (“NLRB”). After consolidating the charges, the NLRB found that Albertson’s had violated Section 8(a)(1) of the National Labor Relations Act (the “NLRA”) by allowing certain charitable groups to solicit on its premises while barring union solicitation on the same premises. This conclusion was based on the NLRB’s longstanding rule that an employer unlawfully discriminates against unions by permitting any other forms of solicitation – including solicitation by charities – while prohibiting union-related solicitation. [See NLRB General Counsel Issues New “Three Strike” Rule on Discriminatory Enforcement of No Solicitation Rules (October 15, 2002)].

On appeal to the Sixth Circuit, Albertson’s argued that it has a right to exclude from its premises non-employee union representatives. The NLRB argued that an “employer violates the NLRA when it denies a union access to its premises for organizational purposes but allows charities to solicit donations on its property.”

THE COURT OF APPEALS DECISION

The Sixth Circuit declined to enforce the NLRB’s order. The Court began its analysis by reference to Section 8(a)(1) of the NLRA, which prohibits employers from interfering with employees’ section 7 rights to engage in union activities, and Section 7, which provides, in relevant part, that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain or other mutual aid or protection.” 29 U.S.C. § 157. Thus, the Court explained, an employer may commit an unfair labor practice when it restrains or interferes with the rights of employees to organize pursuant to Section 7. Because Section 7 rights “apply only ‘derivatively’ to non-employee union organizers,” as a general rule, “an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property.” Thus, an employer may prohibit non-employee distribution of union literature if, inter alia, the “employer’s notice or order does not discriminate against the union by allowing other distribution.”

In applying this rule, the Court concluded that Albertson’s did not unlawfully discriminate against the Teamsters or UFCW by excluding them from the premises, even though it permitted certain forms of charitable solicitation. The Court relied on its prior decisions in Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6^th Cir. 1996) and Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6^th Cir. 2001). In those cases, the Sixth Circuit ruled that an employer does not discriminate against a union where the employer allows charities to disseminate information on the employer’s property while it bars unions from doing the same. In Albertson’s, the Court found that “[t]here is no evidence in this case that during the time Albertson’s refused to allow [] non-employee organizers to distribute literature on its property, Albertson’s allowed distribution by another union or that Albertson’s, itself, disseminated information similar to the information it banned [the union] from disseminating.” Therefore, Albertson’s did not engage in unlawful “discrimination” as that term was defined in Cleveland Real Estate Partners and Sandusky Mall.

CONCLUSION

Albertson’s is an important decision for employers. At least in the Sixth Circuit (which encompasses Kentucky, Michigan, Ohio, and Tennessee) , employers are permitted to enforce no-solicitation policies to prohibit solicitation by nonemployee union solicitors, while still permitting charitable solicitations, so long as the employers’ decision regarding who may solicit is based on valid business reasons and not on anti-union considerations. At the same time, a cautionary note is in order. While the Court’s finding of non-discrimination was based in part on the fact that Albertson’s had not permitted other unions to solicit on the premises, the Court was also careful to observe that Albertson’s itself had not disseminated information similar to that which the Teamsters and UFCW sought to distribute. Thus, the Court appeared to suggest that an employer which distributes company-sponsored communications on the subject of unionization (such as memoranda from management urging employees not to support a union) may engage in unlawful discrimination by simultaneously banning non-employee union representatives. In sum, while the Albertson’s decision adopts a narrow definition of discrimination where charitable solicitation is concerned, it remains to be seen from subsequent decisions whether the case will be applied in a way which may actually expand union access to employer property where the employer engages in its own union-related communications.