Dive Brief:
- A Kentucky Kroger distribution facility violated federal labor laws when it prohibited employees from using a company parking lot to solicit support for a union organizing effort during nonworking time, a National Labor Relations Board administrative law judge held in a May 8 decision.
- Additionally, the judge found that Kroger’s parking policy unlawfully restricted off-duty employee access and that an HR employee, by her statements and conduct, prohibited one employee from soliciting on company property during nonworking time. The judge dismissed other claims brought by NLRB’s general counsel, including that Kroger prohibited employees from discussing unionization and unlawfully interrogated them.
- The judge held that the conduct violated the National Labor Relations Act’s Section 8(a)(1), under which it is illegal for employers to interfere with, restrain or coerce employees in the exercise of activity protected by the law.
Dive Insight:
The decision builds off past NLRB rulings regarding employees’ on-premises solicitation for union-organizing purposes. According to the judge, while employers may restrict solicitation on company property during working time, the NLRA prohibits them from doing so with respect to nonworking time unless they present proof that the restriction is necessary to maintain production or discipline.
Kroger contended that its policy only applied to solicitation during nonworking time, but the NLRB judge disagreed, finding that the policy was “ambiguous at best” and that a reasonable employee could have understood Kroger to have imposed a broad ban on solicitation not limited to working time.
The action of a Kroger HR representative also demonstrated an intent to prohibit off-duty access, according to the judge. Specifically, NLRB’s general counsel alleged that the HR rep spoke to an employee to remind her of the company’s solicitation prohibition and parking lot policy after she handed a union authorization card while off-duty to another worker outside the facility’s main entrance before the other worker began her shift.
The judge noted that the HR rep did not clarify that the employee could continue soliciting from a nearby sidewalk or parking lot if she moved further away from the building entrance. Instead, the rep referred to the parking lot policy itself, which “broadly prohibits employee solicitation in the front parking lot, and it broadly prohibits off-duty employee access to the company premises,” the judge said.
In 2025, an NLRB judge issued a similar decision against Amazon, finding that the company unlawfully prohibited off-duty employees from engaging in protected activity in warehouse parking lots. Years earlier, NLRB held that a Burger King franchisee’s anti-loitering and anti-soliciting policies unlawfully prohibited employees from discussing a strike in the restaurant’s parking lot.
However, a 2019 NLRB decision did hold that employers may adopt policies which block nonemployee union representatives from accessing a company’s public spaces or using the employer’s facilities for promotional or organizational activity.
Parties to a dispute before an NLRB administrative law judge may file exceptions to a judge’s decision with the full board, which then reviews the case and issues its own decision and order. The NLRB may choose to adopt, modify or reject a judge’s findings and recommendations when issuing its own decision and order. Kroger did not respond to an inquiry as to whether it would appeal the May 8 decision to the board.
