The National Labor Relations Board takes allegations of anti-union activity very seriously, and a recent case from a Kroger in Kentucky shows how even a policy regulating parking lot usage can backfire. In a recent judgment pronounced by the NLRB, the Kroger facility was accused of violating federal labor laws by prohibiting its employees from using their parking lot for gathering support for unionization efforts during their off-duty hours. The workers who were attempting to organize union efforts also levied other allegations against Kroger, however, those were dismissed by the judge.
Despite the mixed results, the Kroger union case is a stark example of how restricting employee freedom, particularly when they are not clocked into work, can send a strong message of opposition to the workforce, eliciting an equally firm response from the NLRB in no uncertain terms.
The NLRB has determined that Kroger’s parking lot policy regulating off-duty union solicitation was a violation of federal policy. (Image: Pexels)
How Kroger’s Parking Lot Policy Drew Allegations of Unlawful Restriction of Employees from the NLRB
Earlier this month, an administrative law judge for the National Labor Relations Board concluded that the Kroger Fulfillment Network had violated federal labor laws at a delivery facility in Kentucky when it outlined and enforced a parking lot policy that prevented employees from soliciting union support in the area, although the union activity was restricted to their off-duty hours. According to the details of the case, two customer service delivery drivers began the work on urging coworkers to unionize under the General Drivers, Warehousemen & Helpers Local Union No. 89.
A Kroger HR employee approached one of the workers on two separate occasions and reminded her of the parking lot policy, warding her off from distributing flyers to workers who were around the location. The warnings came at a time when the employee was already signed out of work, and those she was soliciting were not on the clock either. This union solicitation in the parking lot premises was reportedly discouraged by the employer.
What Do We Know About the NLRB Ruling and Kroger’s Defence Against the Allegations?
The judge assigned to the case determined that the choices made by Kroger were a violation of federal labor law and the employees’ rights on two grounds. For one, Kroger was found to have failed to make it clear that any prohibitions of solicitation were only restricted to an employee’s working hours.
While Kroger claimed that this was clearly referenced in its parking lot policy, the judge found that the language was “ambiguous at best,” and that Kroger did not make it sufficiently clear to a reasonable employee that the policy was not a broad ban on such activity. Additionally, the judge also noted that the HR employee who approached the employee handing the flyers did so knowing that all those who were involved in the interaction were not on the clock.
Additionally, Kroger’s parking lot policy also restricted employees’ off-duty access to the area, while the NLRB standard only allowed such restrictions on internal parts of the delivery center’s operations and does not extend to the parking lot or sidewalk.
In its defense, Kroger explained that there were safety and congestion concerns as it shared its lease with a neighbouring business. The judge rebuked this claim as well, stating that there was no evidence of incidents or complaints from the landlord or the co-tenant. While the NLRB ruling on the Kroger case leaned in favor of the employees on these two counts, other claims against the retailer were promptly dismissed.
Navigating Union Activity Requires Utmost Delicacy
The allegations of labor violations are being upheld by the NLRB, which means that the retailer will now have to revoke the parking lot policy. Additionally, the company has to ensure that employees are aware of the change, which means distributing new handbooks with the revisions clearly stated as well as posting an official notice for the next sixty days to alert employees.
While the consequences here don’t come with major financial repercussions, it is important for employers to also ensure that their policies don’t overstep the rights of employees. The right to arrange a union vote is available to the workforce, regardless of the employer’s stance on such matters. Anti-union practices can sour an employer’s relationship with the workers, even among those who do not plan to unionize.
Kroger recently found itself in trouble with the EEOC over ADA violations as well, which shows us the importance of understanding the length and breadth of employment regulations maintained by the state and federal forces. Maintaining a healthy balance of policy and regulation is essential to creating a workplace that can be proud of its work culture and ethics overall.
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