Kroger Mid-Atlantic

National Labor Relations Board - Board Decisions

Sep 6, 2019

368 NLRB No. 64 (N.L.R.B. 2019)

368 NLRB No. 64
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Kroger Limited Partnership I Mid-Atlantic and
United Food and Commercial Workers Union
Local 400. Case 05–CA–155160
September 6, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
The issue before us is whether the National Labor Rela-
tions Act required the Respondent to grant a nonemployee
union agent access to its property to solicit its customers
to boycott its store.1 The Respondent undisputedly had a
property right to exclude the union agent from its prem-
ises. See College Savings Bank v. Florida Prepaid Post-
secondary Education Expense Board, 527 U.S. 666, 673
(1999) (“The hallmark of a protected property interest is
the right to exclude others. That is one of the most essen-
tial sticks in the bundle of rights that are commonly char-
acterized as property.”) (internal citation and quotation
omitted). And, as a general matter, nothing in the Act
compels an employer to grant nonemployee union agents
access to its property. Lechmere, Inc. v. NLRB, 502 U.S.
527, 533 (1992); NLRB v. Babcock & Wilcox, Inc., 351
U.S. 105, 112 (1956). Under an exception to that general
rule, however, an employer may not discriminate against
nonemployee union agents by excluding them from its
property while allowing “other distribution.” Babcock &
Wilcox, supra at 112. The scope of this Babcock discrim-
ination exception—left undefined in Babcock itself—is at
issue in this case.2
In Sandusky Mall Co., 329 NLRB 618 (1999), enf. de-
nied in relevant part 242 F.3d 682 (6th Cir. 2001), the

1 On September 9, 2016, Administrative Law Judge Donna N. Daw-
son issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel and the Union filed answering
briefs, and the Respondent filed a reply brief.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with this Decision and
Order.
The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Walls Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 A second exception to the rule of Babcock—the general rule that an
employer may deny access to its property by nonemployee union
agents—is the inaccessibility exception. Under this exception, if the un-
ion has no other reasonable means of communicating its message to
Board interpreted the Babcock discrimination exception to
require employers to grant access to nonemployee union
agents for any purpose if the employer has allowed “sub-
stantial civic, charitable, and promotional activities” by
other nonemployees. Id. at 622. Applying Sandusky Mall,
the judge in this case found that the Respondent discrimi-
nated against the Union within the meaning of Babcock by
permitting a variety of charitable and civic organizations,
such as the Girl Scouts and the Salvation Army, to fund-
raise on its property while ejecting the nonemployee union
agent who entered its property to solicit the Respondent’s
customers to boycott its store.
Sandusky Mall and its progeny have been roundly re-
jected by the courts of appeals. Courts have consistently
limited the Babcock discrimination exception to situations
where an employer ejects nonemployee union agents
seeking to engage in activities similar in nature to activi-
ties the employer permitted other nonemployees to engage
in on its property. Moreover, in a case decided before
Sandusky Mall and never relevantly overruled, the Board
itself limited Babcock’s discrimination exception the same
way, stating that “a denial of access for Sec[tion] 7 activity
may constitute unlawful disparate treatment where by rule
or practice a property owner permits similar activity in
similar relevant circumstances.” Jean Country, 291
NLRB 11, 12 fn. 3 (1988) (emphasis added).3 After care-
ful consideration, we agree with the reasoning of these
courts and with the Board’s interpretation of Babcock dis-
crimination in Jean Country. Sandusky Mall improperly
stretched the concept of discrimination well beyond its ac-
cepted meaning in a manner that finds no support in Su-
preme Court precedent or the policies of the Act. Accord-
ingly, we find that Sandusky Mall and similar cases should
be overruled.4
employees, the employer’s property interest must yield to the extent
needed to permit communication. 351 U.S. at 112.
3 In Jean Country, the Board also adopted a balancing test to deter-
mine whether access by nonemployee union agents must be permitted
under Babcock’s inaccessibility exception. In Lechmere, the Supreme
Court overruled the Jean Country balancing test as an impermissible in-
terpretation of the Babcock inaccessibility exception. However, the
Court in Lechmere did not disturb or alter the Babcock discrimination
exception, implicitly including the “similar activity in similar relevant
circumstances” interpretation of discrimination within the meaning of
Babcock set forth in Jean Country.
4 See, e.g., Be-Lo Stores, 318 NLRB 1 (1995) (finding that employer
discriminatorily denied access to nonemployee union agents to engage
in protest activities because it had granted access to other nonemployees
to engage in charitable or commercial solicitation on more than isolated
occasions), enf. denied in relevant part 126 F.3d 268 (4th Cir. 1997);
D’Alessandro’s, Inc., 292 NLRB 81 (1988) (finding that employer vio-
lated Sec. 8(a)(1) by denying access to nonemployee union pickets urg-
ing a customer boycott because the employer had permitted a “wide
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under the standard we adopt today, to establish that a
denial of access to nonemployee union agents violated the
Act under the Babcock discrimination exception, the Gen-
eral Counsel must prove that an employer denied access
to nonemployee union agents while allowing access to
other nonemployees for activities similar in nature to those
in which the union agents sought to engage. Consistent
with this standard, an employer may deny access to
nonemployees seeking to engage in protest activities on its
property while allowing nonemployee access for a wide
range of charitable, civic, and commercial activities that
are not similar in nature to protest activities.5 Addition-
ally, an employer may ban nonemployee access for union
organizational activities if it also bans comparable organ-
izational activities by groups other than unions. Because
the General Counsel has not shown that the Respondent
has ever permitted any nonemployees, whether affiliated
with a union or not, to engage in protest activities on its
premises comparable to the boycott solicitation at issue in
this case, we shall reverse the judge’s decision and dismiss
the unfair labor practice complaint.
Background
The Respondent, which is engaged in the retail sale of
grocery items, operated a store (Kroger 538) in Ports-
mouth, Virginia, from at least 1997 until April 11, 2015.6
Kroger 538 was located within a multi-tenant retail shop-
ping center on a parcel of land leased by the Respondent
from Sterling Creek Commons, Limited Partnership. The
leased premises for Kroger 538 included a sidewalk in
front of the store and an enclosed foyer at the customer
entrance.
The shopping center had a parking lot, and Kroger 538
shared with its shopping center co-tenants a right of ease-
ment to the parking lot. There is no dispute that the land-
lord vested in the Respondent a sufficient property interest
and the authority to enforce the lease agreement’s “no so-
licitation/no loitering” rule. In relevant part, the lease
agreement between the Respondent and the landlord
stated:
To the extent not prohibited by applicable laws, the
Parking Areas and Common Facilities shall be subject to

range” of commercial and charitable solicitation by nonemployees on its
property).
5 The “similar in nature” standard encompasses more than the literal
activity engaged in; it also includes the purpose of the activity. For ex-
ample, distributing handbills near the entrance to a grocery store to ad-
vertise a food drive for the local food bank, and distributing handbills to
appeal to shoppers to boycott the store because it sells genetically modi-
fied foods, involve the same activity of distributing handbills; but the
distributions are not similar in nature because the purposes behind the
two distributions are radically different. Although the Board in Jean
Country did not explain its interpretation of Babcock’s discrimination
a uniform “no solicitation/no loitering” rule, pursuant to
which all soliciting, loitering, handbilling and picketing
for any cause or purpose whatsoever shall be prohibited
within the Parking Areas and Common Facilities. Either
Landlord or Tenant may enforce said uniform “no solic-
itation/no loitering” rule, to the extent it can be done in a
lawful manner, by excluding or removing persons en-
gaged in soliciting, loitering, handbilling, or picketing
from the Parking Areas and Common Facilities or by
otherwise lawfully enforcing said rule. Tenant shall
have the right, coupled with an interest, and is hereby
expressly authorized by Landlord to enforce in a lawful
manner said uniform “no solicitation/no loitering” rule
within the Parking Areas and Common Facilities . . . .
Further, the landlord’s representatives sent the Respondent a
letter, dated March 25, 2014, regarding Kroger 538. In this
letter, the landlord expressed concern with “continuous and
smooth operation of the shopping center” and the prevention
of “disruptive activities or nuisances that have a potentially
adverse impact on our tenants and their customers, our shop-
ping center and the community at large.” The letter further
stated:
For the above purposes and to facilitate a prompt re-
sponse to situations which may arise in conjunction with
any protesting, demonstrating, picketing, hand billing, or
related disruptive activities on the premises, the under-
signed Landlord for the above referenced location(s)
hereby states that, to the maximum extent permitted by
law, no person or organization (whether or not involving
a labor union) shall be permitted to engage in such ac-
tivities within the property limits owned by us, including
that portion on which your store currently operates its
business under the terms of our Lease, and any such per-
son or organization shall be dealt with as a trespasser and
removed from the property owned by us and/or leased
by your organization. Landlord further agrees that
should any such person or organization engage in such
activities on our property Landlord gives Kroger Lim-
ited Partnership I the authority to have police or other
authorities, to the extent permitted by law, remove the
trespassers from the property referenced.
exception, we observe that it, too, required more than disparate treatment
of similar activity—i.e., similar activity “in similar relevant circum-
stances.” 291 NLRB at 12 fn. 3. Of course, reliance on the purpose of
the activity in a Babcock discrimination analysis is limited by Sec. 7: an
employer cannot discriminate with regard to nonemployee access on the
basis that the purpose of the prohibited activity is to support a union, and
of the permitted activity to oppose the union—or more generally, where
the facts of the particular case support a reasonable inference “that a dis-
criminatory motive lies behind the exclusion.” Four B Corp. v. NLRB,
163 F.3d 1177, 1184 (10th Cir. 1998).
6 All dates refer to 2015 unless otherwise indicated.
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 3
The record does not show that the Respondent main-
tained any written policies governing the handling of re-
quests by outside organizations to access its property.
However, the judge recounted the testimony of several
former Kroger 538 managers that their unofficial policy or
practice at the store was that organizations’ requests to so-
licit on Kroger 538’s property would be forwarded to the
store manager for review, and that Kroger 538 store man-
agers approved some groups’ requests but denied other
groups’ requests. For example, one former Kroger 538
manager, Timothy Lynch, testified that during his approx-
imately 10-month tenure at Kroger 538, he required an or-
ganization seeking to solicit or distribute on Kroger 538’s
property to submit a request on the organization’s letter-
head. He would then notify the organization that he had
either approved or disapproved the request. Donati High,
another former manager of Kroger 538, testified that when
a group made a request to him, he asked it to submit the
request in writing, and he would either approve or deny it.
High further testified that he would favorably consider re-
quests for “anything civic, like the local fire departments,
military veterans, the Lions Club, those were typically the
criteria,” provided there were “available dates because
you don’t want to over-swarm the customers, people in the
parking lot every day.”
The judge credited testimony establishing that the Re-
spondent allowed several entities to pass out literature
and/or sell goods on the sidewalk area on either side of the
front entrance to Kroger 538. The Girl Scouts sold cook-
ies for a week or more in the spring of every year; the Li-
ons Club collected donations or sold items on two occa-
sions; the Salvation Army collected donations during the
weeks between Thanksgiving and Christmas each year;
and a breast-cancer awareness group solicited donations,
passed out literature, and sold items on one occasion.
Also, on one occasion 4 or 5 years before the events at
issue here, the Respondent permitted the American Red
Cross to run its mobile blood drive in the parking lot of
Kroger 538. On another occasion, the Respondent al-
lowed local firefighters to collect donations in the parking
lot.
The record also shows that Kroger 538 prohibited cer-
tain groups from soliciting on its property. On several oc-
casions, a church group engaged in solicitation on the Re-
spondent’s property, and a manager instructed them to
leave each time.
Since around March 28, 2010, the Union has repre-
sented a unit of employees at Kroger 538 (and other
Kroger stores in the Hampton Roads area of Virginia) for

7 There is no complaint allegation that the Respondent violated the
Act by declining to offer to unit employees the opportunity to transfer to
the two new Marketplace stores.
purposes of collective bargaining. The Respondent and
the Union entered into a collective-bargaining agreement
that was effective August 3, 2014, through August 4,
2018.
In late 2014, the Respondent opened two new Kroger
Marketplace stores in southeastern Virginia. In Novem-
ber, it opened Kroger 542 in Portsmouth, Virginia (only a
few miles from Kroger 538), and in December, it opened
Kroger 554 in Suffolk, Virginia. The employees at both
stores were not represented by a union during the events
at issue in this case. Shortly after the two new stores
opened, the Respondent began the process of closing other
stores, including Kroger 538.
As part of the process of closing stores, the Respondent,
through its human resources coordinator, Diego Duran,
met over the course of several weeks with the Kroger 538
employees and their nonemployee Union Representative,
Heath Fenner. The Respondent offered Kroger 538 em-
ployees the opportunity to transfer to other Kroger stores.
However, a point of contention during these meetings con-
cerned the Respondent’s refusal to offer Kroger 538 em-
ployees the option to transfer to the nearby, newly-opened
Kroger Marketplace stores. Instead, the Respondent of-
fered Kroger 538 employees reassignment to unionized
stores, with “key roles” to be filled in Virginia Beach
stores and the remaining positions to be filled at a store in
Yorktown, Virginia. The Union contended that the Re-
spondent should also offer its Kroger 538 employees the
ability to transfer to the new Marketplace stores.7
On April 2, while Duran and Fenner were meeting with
employees to finalize relocation plans, another nonem-
ployee Union Representative/Organizer, Brandon For-
ester, began soliciting customers in the parking lot in front
of Kroger 538 to sign a petition protesting the Respond-
ent’s decision to transfer Kroger 538 employees to stores
outside the Portsmouth area. The petition displayed a ban-
ner stating, “#KrogerStrong SOLIDARITY with Virginia
Kroger Workers,” and it went on to state as follows:
As a loyal Kroger customer and member of the Ports-
mouth community I am appalled that Kroger is taking
good jobs out of our town and forcing the employees
who have helped me at my store for years move to a
store over 25 miles away.
I will not shop at either of the newly opened Market-
place stores unless the employees at this store are al-
lowed to transfer there with all the benefits they cur-
rently enjoy as union members.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Emphasis in original.) Either during a break or after Fen-
ner’s meeting with Duran, Fenner joined Forester in the park-
ing lot. He supported Forester’s efforts, but there is no evi-
dence that he assisted Forester in asking customers to sign the
petition.
Kroger 538’s Store Manager, Donati High, was advised
that union agents were soliciting in the parking lot. He
notified Duran, who phoned his district manager to obtain
guidance. According to Duran, the district manager told
him to get a copy of the above-mentioned March 25, 2014
letter. After High and Duran located the letter, they went
outside and confronted Forester (who, by that time, had
been joined by Fenner). High and Duran showed the letter
to Forester and Fenner and told them that they were not
authorized to solicit on the premises and to leave the Re-
spondent’s property. One of the union representatives
stated that “they would only listen to the blue,” which Du-
ran interpreted to mean that they would only leave if the
police told them to leave.
High and Duran returned to the front of the store and
followed the district manager’s further instruction to call
the police if Forester continued to approach people in the
parking lot. There is no dispute that, as Forester continued
to solicit customers, either High or Duran called the police
and asked them to stop the Union’s solicitation efforts in
the parking lot. There is also no dispute that, when asked
by police officers, Forester left the premises. At that point,
Fenner returned to the store.
The Respondent closed Kroger 538 around April 11. Its
unionized employees who chose to continue working for
the Respondent transferred to one of the unionized Kroger
stores mentioned above.
The complaint alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act by prohibiting, under the no-solici-
tation/no-loitering policy in its lease, nonemployee union
representatives from soliciting the Respondent’s custom-
ers, in the parking area adjacent to the Respondent’s facil-
ity, to sign a petition; demanding that the union represent-
atives leave that area; and calling the police to remove the
union representatives from that area. The judge found that
the Respondent violated Section 8(a)(1) as alleged and or-
dered the Respondent to cease and desist from discrimina-
torily denying access to the Union and to post a remedial
notice.
The judge first determined that Forester, in soliciting
signatures for the Union’s petition in support of Kroger
538 employees, was engaged in activity protected by the
Act. Second, the judge found that the Respondent pos-
sessed an undisputed property right to exclude individuals
from its leased premises. Third, citing Sandusky Mall, the
variety of permitted nonemployee solicitations, and the
fact that the Respondent permitted the Salvation Army and
Girl Scouts to solicit donations and sell items for “weeks
at a time each year,” the judge found that the Respondent
unlawfully discriminated against the Union by regularly
allowing various entities to solicit on its property while
prohibiting the nonemployee union representatives from
doing so.
The Respondent excepts to the judge’s decision. It ar-
gues that its conduct was not unlawful and asserts that the
Union’s petition activity was not protected. The Respond-
ent further asserts that the Board should reconsider its ap-
proach to nonemployee union solicitation as reflected in
Sandusky Mall and related cases. According to the Re-
spondent, Sandusky Mall is inconsistent with the Supreme
Court’s decisions in Babcock & Wilcox and Lechmere.
Further, the Respondent argues that the Board has failed
to properly consider persistent judicial criticism of its in-
terpretation of Babcock’s discrimination exception, and an
employer that allows charitable or civic entities to solicit
for their causes on its property should not be compelled to
open its property to solicitation by nonemployee union
representatives.
The General Counsel and the Union contend that the
Union’s conduct was protected under the Act. They fur-
ther contend that the judge correctly applied extant Board
law in finding a discriminatory denial of access and that
the Respondent has not provided a sound basis for over-
ruling Board law in this area.
For the reasons stated below, we find merit in the Re-
spondent’s argument that the Board’s current interpreta-
tion of the Babcock discrimination exception, as exempli-
fied in Sandusky Mall, should be revised. Applying our
new approach retroactively to the instant case, we shall
dismiss the complaint.
Discussion
I. LEGAL BACKGROUND
In Sandusky Mall and its progeny, the Board has taken
a broad view of what constitutes a discriminatory denial
of access, finding that there is no meaningful difference
between nonemployee union agents’ boycott or organiza-
tional activities, on the one hand, and charitable, civic, or
commercial activities on the other. The Board has created
only two minor exceptions to this broad view of Babcock
discrimination. First, an employer does not “discrimi-
nate” against nonemployee union solicitation by barring it
while tolerating a few isolated instances of charitable so-
licitation. Hammary Mfg. Co., 265 NLRB 57, 57 fn. 4
(1982). Second, an employer does not “discriminate” if it
permits nonemployee solicitations that relate to the em-
ployer’s business functions and purpose. Rochester Gen-
eral Hospital, 234 NLRB 253, 259 (1978).
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 5
In Sandusky Mall, two nonemployee union agents dis-
tributed handbills at the entrance of a store in a shopping
mall. The handbills urged the public not to patronize the
store because a nonunion construction company remodel-
ing the store allegedly did not pay prevailing wages. The
mall ejected the nonemployee union handbillers. Both be-
fore and after the union handbilling, the mall had allowed
the Salvation Army, the American Red Cross, and the
United Way to solicit within the mall concourse. The mall
had also granted access to other nonemployees to conduct
an Arthur Murray dance marathon, a beauty pageant, and
a gift-wrapping booth sponsored by the American Lung
Association, along with other events. Applying Babcock,
the Board found that the mall had discriminated against
the nonemployee union handbillers by regularly allowing
other nonemployee solicitation, even though none of that
solicitation involved attempts to encourage mall patrons
to boycott a mall store.
The 6th Circuit refused to enforce the Board’s order.
Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir. 2001).
The court applied its view that “discrimination” under
Babcock “‘means favoring one union over another, or al-
lowing distribution of employer-related information while
barring similar union-related information.’” Id. at 686
(quoting Cleveland Real Estate Partners v. NLRB, 95 F.3d
457, 464–465 (6th Cir. 1996)). Further, the court agreed
with former Member Brame’s dissenting view in
Sandusky Mall that “the alleged ‘discriminatory’ conduct
in allowing solicitation o[r] handbilling require[s] that
‘discrimination be among comparable groups or activi-
ties,’ and that the activities themselves under considera-
tion must be ‘comparable.’” Id. at 690 (emphasis in orig-
inal). The court found that the employer had not discrim-
inated “because the conduct of the nonemployee union
handbillers [wa]s not similar conduct to that of civil and
charitable organizations who obtained permission from
Sandusky to use the mall in a limited way deemed benefi-
cial.” Id. at 692.8
Other courts of appeals have likewise disagreed with the
Board’s broad interpretation of Babcock’s discrimination
exception. In Riesbeck Food Markets, Inc. v. NLRB, 91
F.3d 132 (4th Cir. 1996) (unpublished), the 4th Circuit dis-
agreed with the Board’s conclusion that an employer had
discriminated against nonemployee union agents by deny-
ing them access to engage in protest activities after having

8 See also Albertson’s Inc. v. NLRB, 301 F.3d 441 (6th Cir. 2002)
(holding that Board erred in finding that employer had discriminated
against nonemployee union organizational solicitors by regularly permit-
ting the Salvation Army, Girl Scouts, and others to engage in charitable
solicitation on its premises).
9 On this point, the court recounted the Board’s factual findings that
“Muslims selling oils and incense were present on a ‘pretty constant’ ba-
sis in front of Store 232 and were present on a ‘regular’ basis in front of
allowed a significant amount of charitable and civic solic-
itations by nonemployees on its property. In Riesbeck,
nonemployee union agents engaged in picketing and
handbilling to urge customers to boycott the employer’s
food stores. The employer asked the nonemployee union
agents to leave. When they refused, the employer com-
menced trespass actions against the union. Applying the
broad construction of Babcock’s discrimination exception,
the Board found that the employer had violated Section
8(a)(1) of the Act. Riesbeck Food Markets, 315 NLRB
940 (1994).
On review, the 4th Circuit rejected the Board’s broad
theory of discrimination, reasoning that “[d]iscrimination
claims ‘inherently require a finding that the employer
treated similar conduct differently[.]’” Id. (quoting NLRB
v. Southern Maryland Hospital Center, 916 F.2d 932, 937
(4th Cir. 1990) (per curiam)). The court took note of the
“legally significant differences between the charitable so-
licitation which Riesbeck allowed and the union’s ‘do not
patronize’ solicitation which Riesbeck prohibited.” Id.
The court explained that Riesbeck could reasonably be
seen to have allowed the civic and charitable solicitations
out of feelings of altruism or civic duty, and it noted that
such motivations would not allow for the union’s do-not-
patronize message. The court further explained that
Riesbeck “has a strong interest in preventing the use of its
property for conduct which directly undermines its pur-
poses, i.e., the sale of goods and services to Riesbeck’s
customers, which was implicated by the union’s solicita-
tions but not by the charitable solicitations.” Id. Finally,
the court observed that there was no evidence of even a
single instance in which Riesbeck had permitted commer-
cial, political, or other controversial groups to solicit on its
property. For these reasons, the court ruled that the
Board’s finding of discrimination could not stand.
Similarly, in Be-Lo Stores v. NLRB, 126 F.3d 268 (4th
Cir. 1997), the 4th Circuit disagreed with a Board finding
that an employer had discriminated against nonemployee
union agents by denying them access to a number of its
properties to protest the employer’s alleged unfair labor
practices where the employer had tolerated some amount
of charitable, civic, and commercial solicitation at several
of its stores.9 After summarizing Babcock and Lechmere,
the court cited approvingly the D.C. Circuit’s observation
in UFCW v. NLRB, 74 F.3d 292, 300 (D.C. Cir. 1996), that
Store 236. Further, an ‘occasional’ Jehovah’s Witness distributed the
Watchtower magazine at Store 148 and on one occasion a local Lions
Club solicited at that store. Also, Lyndon LaRouche followers on a ‘cou-
ple of occasions’ handed out literature at Stores 28 and 120. In addition,
a person sold a cookbook inside Store 102 and ‘occasional[ly]’ individ-
uals sold Girl Scout cookies and greeting cards inside Store 232.” Id. at
284–285.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nonemployees’ claims of a right to access an employer’s
private property are at their nadir when nonemployees
seek to engage in protest or economic activities as opposed
to organizational activities. The 4th Circuit also rejected
the view that the employer’s approval of limited charitable
or civic distribution while excluding union distribution
constituted discrimination, stating that “[n]o relevant la-
bor policies are advanced by requiring employers to pro-
hibit charitable solicitations in order to preserve the right
to exclude nonemployee distribution of union literature
when access to the target audience is otherwise available.”
126 F.3d at 284 (citing Cleveland Real Estate Partners v.
NLRB, 95 F.3d at 465). Enforcing the Board’s order, said
the court, would be “tantamount to a holding that if an em-
ployer ever allows the distribution of literature on any of
its property, then it must open its property to paid nonem-
ployee union picketers.” Id. at 284. “We are confident,”
the court concluded, “that the Supreme Court never in-
tended such a result.” Id. at 285.10
In Salmon Run Shopping Center LLC v. NLRB, 534 F.3d
108 (2d Cir. 2008), the 2d Circuit similarly rejected the
Board’s Sandusky Mall standard, holding instead that
“[t]he focus of the discrimination analysis under Section 7
of the Act must be upon disparate treatment of two like
persons or groups.” Id. at 116 (citing Guardian Industries
Corp. v. NLRB, 49 F.3d 317, 319 (7th Cir. 1995)). The
court further explained that “to amount to Babcock-type
discrimination, the private property owners must treat a
nonemployee who seeks to communicate on a subject pro-
tected by section 7 less favorably than another person
communicating on the same subject.” Id. at 116–117. Ac-
cordingly, the court found that the solicitation by firefight-
ers of donations to fight muscular dystrophy and the dis-
tribution of promotional materials for a “Higher Ed
Night,” permitted by the employer, did “not serve as valid
comparisons to the Carpenters’ Union distribution of lit-
erature touting the benefits of its apprenticeship programs
or decrying the failure of a mall tenant to pay area stand-
ards wages.” Id. at 117.
The 9th Circuit, too, has rejected the Board’s view of
Babcock’s discrimination exception. See NLRB v. Pay
Less Drug Stores Northwest, Inc., 57 F.3d 1077 (9th Cir.
1995) (unpublished). In that case, the employer had
ejected nonemployee union agents who sought to picket
on the sidewalk in front of the employer’s store with signs
proclaiming the employer’s nonunion status and urging
the public not to patronize the store. Pay Less Drug Stores
Northwest, Inc., 312 NLRB 972, 972 (1993), enf. denied
mem. 57 F.3d 1077 (9th Cir. 1995). In the past, the

10 See also NLRB v. Southern Maryland Hospital Center, 916 F.2d at
937 (“Claims of disparate enforcement inherently require a finding that
the employer treated similar conduct differently, and we see a difference
employer had permitted others, including the Girl Scouts
and volunteers for a community bloodmobile, to solicit on
its property. In finding that the Board had erred in finding
Babcock-type discrimination, the court stated that “a busi-
ness should be free to allow local and charitable commu-
nity organizations to use its premises, whether for purely
altruistic reasons or as a means of cultivating good will,
without thereby being compelled to allow the use of those
same premises by an organization that seeks to harm that
business.” 57 F.3d 1077. The court found “no similarity”
between the union’s conduct and the conduct permitted by
the employer, and hence concluded that “the NLRB incor-
rectly interpreted and applied the Act to the facts of this
case.” Id.; cf. 6 West Ltd. Corp. v. NLRB, 237 F.3d 767,
780 (7th Cir. 2001) (holding that employer did not “dis-
criminate” by permitting solicitations for Girl Scout cook-
ies, Christmas ornaments, and hand-painted bottles while
prohibiting union organizational solicitations).
The D.C. and 10th Circuits have found that employers
discriminated within the meaning of Babcock where they
banned nonemployee access to engage in union organiza-
tional solicitation while allowing nonunion activities of a
similar nature. In Lucile Salter Packard Children’s Hos-
pital at Stanford v. NLRB, 97 F.3d 583 (D.C. Cir. 1996),
the court affirmed the Board’s finding that a hospital dis-
criminated against nonemployee union agents seeking ac-
cess to distribute union organizational literature in a hall-
way near the hospital’s cafeteria. The hospital had “regu-
larly” granted access to other nonemployees to engage in
a variety of civic and commercial activities. For example,
a local credit union solicited employees to become mem-
bers, an insurance company sold insurance, and a family-
services company distributed literature about family-care
resources. The hospital also permitted a number of ven-
dors to sell their wares (including flowers, balloons, gifts,
jewelry, and scrubs) near the cafeteria, with 10–15 percent
of vendor proceeds going to an employee-activity com-
mittee. In affirming the Board’s decision, the court rec-
ognized that “[a]n employer may not exercise its usual
right to preclude union solicitation and distribution on its
property if the employer permits similar activity by other
nonemployee entities ‘in similar relevant circum-
stances.’” Id. at 587 (quoting Jean Country, 291 NLRB
at 12 fn. 3) (emphasis added). But the court deferred to
the Board’s finding that the union’s organizational solici-
tation was similar in relevant respects to the wide variety
between admitting employee relatives for meals and permitting outside
entities to seek money or memberships.”) (citation omitted).
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 7
of commercial and charitable solicitation the hospital had
allowed.11
In contrast, the 6th Circuit has held the Board’s extant
interpretation of the Babcock discrimination exception im-
permissible to the extent it treats nonemployee union or-
ganizational activity as comparable to nonemployee char-
itable, civic, or commercial activity. Albertson’s Inc. v.
NLRB, 301 F.3d at 446–447. In Albertson’s, the court ex-
plained that its holding was compelled by its earlier deci-
sion in Cleveland Real Estate Partners, supra, which de-
fined “discrimination” as “favoring one union over an-
other, or allowing employer-related information while
barring similar union-related information.” 95 F.3d at
465. The Albertson’s court rejected the Board’s attempt
to distinguish Cleveland Real Estate Partners on the
ground that it involved boycott activity rather than organ-
izational activity. 301 F.3d at 447. The court explained
that the Board’s proposed distinction was unpersuasive
because the court’s understanding of discrimination was
grounded in Babcock & Wilcox, which itself dealt with or-
ganizing activity. Id.
II. ANALYSIS
A. Babcock Discrimination is the Unequal Treatment of
Activities Similar in Nature.
1. Judicial precedent supports such a standard.
Section 7 of the Act provides that “[e]mployees shall
have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective

11 See also Four B Corp. v. NLRB, 163 F.3d 1177 (10th Cir. 1998)
(affirming Board’s finding that employer discriminated against nonem-
ployee union agents by denying them access to engage in organizational
activities while granting access to other nonemployees to engage in a
substantial amount of commercial and charitable activities under “simi-
lar, relevant circumstances,” reasoning that the disparate treatment evi-
denced an anti-union motive). In Four B, the employer’s written solici-
tation policy (i) prohibited nonemployee solicitation inside its store, (ii)
allowed various charitable and civic solicitations in the parking lot, but
(iii) prohibited nonemployee union organizational solicitation anywhere
on its premises. The court approved the Board’s finding of discrimina-
tion based on the particular facts of the case: “[W]hen an employer . . .
has a published rule prohibiting solicitation under stated circumstances,
and excludes a union from its property under materially different circum-
stances in which no other outside organization has been excluded, it is
fair to infer, as we do here, that a discriminatory motive lies behind the
exclusion.” Id. at 1184. The court also cited approvingly decisions by
other courts recognizing that employers may make neutral, non-Section
7–based distinctions between different kinds of solicitations, such as dis-
tinguishing between “charitable solicitations which encouraged [the em-
ployer’s] business activity and the union’s do-not-patronize message,”
which was harmful to the employer’s business, citing Riesbeck Food
Markets, supra.
The 7th and 8th Circuits have reached similar results. See North Me-
morial Health Care v. NLRB, 860 F.3d 639 (8th Cir. 2017) (adopting the
bargaining or other mutual aid or protection . . . .” Section
8(a)(1) of the Act makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [S]ection 7.”
Consistent with these statutory provisions, the Board and
the courts have long held that “[n]o restriction may be
placed on the employees’ right to discuss self-organiza-
tion among themselves, unless the employer can demon-
strate that a restriction is necessary to maintain production
or discipline.” Babcock, 351 U.S. at 113. But the Act
confers no such right on nonemployees, Lechmere, 502
U.S. at 532, and an employer is entitled to exclude nonem-
ployee union agents from its property, subject to two nar-
row exceptions. Thus, for more than 60 years, the Su-
preme Court has held that “[a]n employer may validly post
his property against nonemployee distribution of union lit-
erature if reasonable efforts by the union through other
available channels of communication will enable it to
reach the employees with its message and if the em-
ployer’s notice or order does not discriminate against the
union by allowing other distribution.” Babcock, supra at
112. The former exception is termed the “inaccessibility”
exception. Here, we are concerned with the scope of the
latter “discrimination” exception.
As previously noted, Babcock itself did not provide any
specific definition of the “discrimination” exception, alt-
hough it is reasonable to infer that this exception should
be limited, as is the Babcock inaccessibility exception, in
order to be consistent with the general rule that employers
have a right to exclude nonemployee union agents and
their supporters.12 Indeed, as discussed above, several
Board’s finding that the employer discriminated against union represent-
atives by denying them access to a public cafeteria based on the content
of their conversation where, among other things, the employer told the
union representatives that they could “talk about the Twins” with off-
duty employees but could not “talk about union business”); Montgomery
Ward & Co., Inc. v. NLRB, 692 F.2d 1115 (7th Cir. 1982) (affirming the
Board’s finding that employer violated the Act by granting access to
commercial solicitors while denying access to nonemployee organizers).
In Belcher Towing Co. v. NLRB, 614 F.2d 88 (5th Cir. 1980), the court
rejected the Board’s finding that the employer had promulgated a no-
solicitation rule that discriminated against nonemployee union organiz-
ers, where the employer had allowed access by nonemployees other than
union organizers, but there was no evidence that the employer allowed
solicitation by anyone. In analyzing this issue, the court stated that “a
no-solicitation rule is discriminatory only if the employer allows non-
union [s]olicitation (for example, solicitation by charitable organiza-
tions).” Id. at 90. In context, we believe that the court’s analysis is con-
sistent with our focus on whether permitted activities, if any, were simi-
lar in nature to the prohibited activity of nonemployee union representa-
tives.
12 In Babcock, the Supreme Court cited its earlier decision in NLRB
v. Stowe Spinning Co., 336 U.S. 226 (1949), where it upheld the Board’s
finding that it was unlawful under the Act “to discriminate against a un-
ion by denying it the only available meeting hall in a company town
when . . . the sole purpose of the discriminatory denial is to impede,
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
federal courts of appeals have rejected the interpretation
of Babcock’s discrimination exception espoused by the
Board in Sandusky Mall and other cases as far too expan-
sive. Instead, to warrant a finding of discrimination, those
courts have demanded proof that the activities of nonem-
ployees admitted to the property were sufficiently similar
to those of nonemployees excluded from the property (or
that the admitted and excluded groups were comparable).
See, e.g., Riesbeck Food Markets, Inc. v. NLRB, supra
(“Discrimination claims ‘inherently require a finding that
the employer treated similar conduct differently[.]’”);
Cleveland Real Estate Partners v. NLRB, 95 F.3d at 465
(“No relevant labor policies are advanced by requiring
employers to prohibit charitable solicitations in order to
preserve the right to exclude nonemployee distribution of
union literature when access to the target audience is oth-
erwise available.”); Salmon Run Shopping Center LLC v.
NLRB, 534 F.3d at 116 (“The focus of the discrimination
analysis under Section 7 of the Act must be upon disparate
treatment of two like persons or groups.”). While the
courts of appeals that have considered the issue have dif-
fered in their definition of what nonemployee activities are
comparable, they are unanimous in the conclusion that
nonemployee protest or boycott activities are not compa-
rable to nonemployee charitable, civic, or commercial so-
licitations, and that an employer does not engage in “dis-
crimination” within the meaning of Babcock when it for-
bids the former but permits the latter.13 We are unaware
of a single case where a court has affirmed a Board deci-
sion finding that an employer discriminated against
nonemployee union agents seeking to engage in protest
activities—urging customers not to do business with the
employer—because the employer granted access to other
nonemployees to engage in charitable, civic, or commer-
cial activities.
In our view, the criticisms leveled by the courts against
the Sandusky Mall standard are just and counsel

prevent, and discourage self-organization and collective-bargaining by
the (company’s) employees . . . .” Id. at 227 (internal quotations omit-
ted). For the reasons explained below, our decision today is consistent
with the holding of Stowe Spinning.
13 Lucille Salter and Four B Corp. are not to the contrary. Both cases
predated Sandusky Mall and thus had no occasion to pass on its expan-
sive definition of Babcock discrimination. Both cases also involved un-
ion organizational activities, rather than boycott activities like those at
issue in this case. Moreover, as noted above, in both cases the court
considered whether the nonemployee activities permitted by the em-
ployer were similar in nature to the nonemployee union activities that the
employer prohibited. Our decision today does likewise.
14 The Sandusky Mall Board dismissed the employer’s stated distinc-
tion between activities that might benefit and were consistent with the
purposes of the mall and its tenants (e.g., charitable and civic solicita-
tions) and those that were not (e.g., urging a boycott of a mall tenant) as
modification of the Board’s current definition of the Bab-
cock discrimination exception.
2. Sandusky Mall is flawed on both legal and
policy grounds.
The Sandusky Mall Board provided no valid justifica-
tion for its view that the Babcock discrimination exception
applies whenever an employer prohibits nonemployee un-
ion access while “at the same time allowing substantial
civic, charitable, and promotional activities.” 329 NLRB
at 622. It offered no principled defense of its interpreta-
tion of the Babcock discrimination exception. Instead, it
echoed Babcock’s terse language as though its meaning
were self-evident, id. at 620–621, and asserted that the
courts should defer to its interpretation of Babcock be-
cause it had applied that interpretation consistently, id. at
621 fn. 12.14 But the Sandusky Mall Board overlooked the
fact that the Board itself had previously interpreted Bab-
cock’s discrimination exception in a manner congruent
with the views of the appellate courts discussed above.
See Jean Country, 291 NLRB at 12 fn. 3; supra fn. 3 and
accompanying text. Thus, in adopting an interpretation of
Babcock’s discrimination exception that aligns with that
of the federal courts of appeals, we also return to an inter-
pretation embedded in the Board’s own pre–Sandusky
Mall precedent—precedent that the Board in Sandusky
Mall did not even mention.
No principle of property law or policy of the Act sup-
ports the Board’s decision in Sandusky Mall.15 An em-
ployer’s right to exclude from its property uses it finds ob-
jectionable is not diminished, as a matter of property law,
merely because it allows other, different uses to which it
does not object. See NLRB v. Pay Less Drug Stores North-
west, Inc., 57 F.3d at 1077 (“A business should be free to
allow local charitable and community organizations to use
its premises, whether for purely altruistic reasons or as a
means of cultivating good will, without thereby being
compelled to allow the use of those same premises by an
organization that seeks to harm that business.”); Sandusky
amounting to little more than the employer permitting solicitation that it
likes and prohibiting solicitation that it dislikes. And the Sandusky Mall
Board found prohibited discrimination even though the employer had
also denied access to nonunion nonemployee organizations on the same
basis. The courts have rejected this reasoning, and we do as well.
15 See Stein, Keep Off the Grass: Prohibiting Nonemployee Union
Access Without Discriminating, 73 N.Y.U.L. Rev. 2029, 2050 (1998):
There are two possible explanations for the Babcock discrimination bar.
It may serve to indicate that an employer has a sufficiently weak prop-
erty interest that even a derivative § 7 interest should outweigh it. Al-
ternatively, discrimination may be frowned upon because it evidences
possible union animus, i.e., specific targeting of a union for adverse
treatment. However, neither of these rationales provide adequate sup-
port for the Board’s broad definition of discrimination and blanket ap-
plication of the discrimination exception.
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 9
Mall Co. v. NLRB, 242 F.3d at 692 (finding no discrimi-
nation within the meaning of Babcock where “the conduct
of the nonemployee union handbillers [wa]s not similar
conduct to that of civil and charitable organizations who
obtained permission from Sandusky to use the mall in a
limited way deemed beneficial”).
Sandusky Mall’s broad interpretation of Babcock’s dis-
crimination exception is not necessary to protect employ-
ees’ exercise of their Section 7 rights. Our decision to
overrule Sandusky Mall has no effect whatsoever on the
right of employees to engage in Section 7 activity on their
employer’s premises, subject to the employer’s legitimate
management interest in maintaining production and disci-
pline, as discussed above. See, e.g., F.W. Woolworth Co.,
310 NLRB 1197, 1197 (1993) (finding that off-duty em-
ployees were engaged in protected activity when they po-
sitioned themselves near store entrances, distributed hand-
bills to potential customers, and asked them to shop else-
where during their labor dispute with employer). The Su-
preme Court has recognized that employees’ “‘right of
self-organization depends in some measure on [their] abil-
ity . . . to learn the advantages of self-organization from
others,’” Lechmere, 502 U.S. at 532 (quoting Babcock,
351 U.S. at 113), but nonemployee union organizers can
communicate their message to employees through non-
trespassory means. The Supreme Court has held that such
methods of communication are sufficient to enable em-
ployees to exercise their own statutory right to self-organ-
ization in all but the extremely rare case where employees
are inaccessible. Id. at 533–535.16 There is, accordingly,
no basis for finding that such nontrespassory means are
insufficient for the purpose of communicating with cus-
tomers or the public. The denial of trespassory access may
make such communications more difficult, or even less ef-
fective, but such considerations are, standing alone, no
valid basis for requiring an employer to allow nonem-
ployee access. Lechmere, supra at 539. Accordingly, such
considerations also would not justify Sandusky Mall’s
overbroad interpretation of the Babcock discrimination
exception.
Nor would there be any valid basis for assuming that
employees will be deterred from engaging in union activ-
ities or from otherwise supporting a labor organization
merely because their employer bars nonemployee access

16 Employees are inaccessible within the meaning of Lechmere and
Babcock where “‘the location of a plant and the living quarters of the
employees place the employees beyond the reach of reasonable union
efforts to communicate with them,’” Lechmere, supra at 533–534 (quot-
ing Babcock, supra at 113)—i.e., where employees, “by virtue of their
employment, are isolated from the ordinary flow of information that
characterizes our society,” such as in logging camps, mining camps, and
at mountain resort hotels. Lechmere, supra at 539–540.
for activity that is not comparable to permitted nonunion
activity. For example, if an employer bars nonemployee
boycott picketing while permitting the Salvation Army to
ring its bell for donations during the holidays, no reasona-
ble employee would conclude that the employer acted
with union animus, as opposed to a union-neutral desire to
exclude any nonemployee group that seeks to urge its cus-
tomers not to purchase its goods or services. And any sug-
gestion that employees would be chilled from engaging in
such activities themselves merely because their employer
does not allow nonemployees to engage in them on its
premises would be contrary to the holdings of Lechmere
and Babcock.
The broad interpretation of discrimination advanced by
the Sandusky Mall Board is also in tension with the Su-
preme Court’s opinions in Lechmere and Babcock.17
While those decisions addressed the scope of the inacces-
sibility exception to the rule of Babcock, the Court’s opin-
ions in those cases provide useful guidance to determining
the scope of the discrimination exception as well. In Bab-
cock, the Court stated that “[o]rganization rights are
granted to workers by the same authority, the National
Government, that preserves property rights. Accommoda-
tion between the two must be obtained with as little de-
struction of one as is consistent with the maintenance of
the other.” 351 U.S. at 112. And as we have just seen, the
Court in both Babcock and Lechmere emphasized that the
role of nonemployees in the maintenance of workers’ or-
ganizational rights is sufficiently fulfilled, in all but the
rarest circumstances, through nontrespassory means of
communication. Accordingly, the Court in Lechmere
stated that the “exception to Babcock’s rule is a narrow
one,” 502 U.S. at 539, and that the Act restricts an em-
ployer’s right to exclude nonemployee union organizers
from its property only in “limited circumstances,” id. at
532. While the Court was specifically discussing the in-
accessibility exception, we believe that its repeated affir-
mation of the Babcock rule that an employer may “post his
property against nonemployee distribution of union litera-
ture” and its characterization of exceptions to that rule as
“narrow” and “limited” in the context of employee inac-
cessibility also counsel against a broad interpretation of
Babcock’s discrimination exception.18
17 The Supreme Court has repeatedly reaffirmed the principles of
Babcock & Wilcox, albeit without applying its discrimination exception.
See Lechmere, supra; Sears, Roebuck & Co. v. San Diego County Dis-
trict Council of Carpenters, 436 U.S. 180, 204–205 & fn. 40 (1978);
Hudgens v. NLRB, 424 U.S. 507, 511, 521–522 (1976); Central Hard-
ware Co. v. NLRB, 407 U.S. 539, 543–545 (1972).
18 In this respect, we find useful guidance in the Supreme Court’s
subsequent decision in Perry Education Assn. v. Perry Local Educators’
Assn., 460 U.S. 37, 48 (1983), a First Amendment case, where the Court
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Simply put, the rule of Babcock is the rule, and the ex-
ceptions are exceptions—and under Sandusky Mall, the
Board permitted the Babcock discrimination exception to
swallow the rule. Nothing could be more common than
the sight of Girl Scouts selling cookies or Salvation Army
bell ringers on the sidewalk in front of a grocery or depart-
ment store. If allowing access for these and similar activ-
ities (on more than isolated occasions) while excluding
nonemployees who seek to advocate a store boycott con-
stitutes discrimination for purposes of Babcock, then the
discrimination “exception” will almost always apply. And
an exception that almost always applies is not an excep-
tion, but a rule.
3. Sandusky Mall is overbroad—but the 6th and
2d Circuit’s standards are too narrow.
Although we overrule today Sandusky Mall, we respect-
fully disagree with the 6th Circuit that Babcock discrimi-
nation is limited to “favoring one union over another, or
allowing employer-related information while barring sim-
ilar union-related information,” Cleveland Real Estate
Partners v. NLRB, 95 F.3d at 465, and with the 2d Circuit
that it means “treat[ing] a nonemployee who seeks to com-
municate on a subject protected by section 7 less favorably
than another person communicating on the same subject,”
Salmon Run Shopping Center LLC v. NLRB, 534 F.3d at
116–117. We agree with these courts, of course, that an
employer discriminates within the meaning of Babcock
when it grants nonemployee access in support of one un-
ion while denying nonemployee access in support of an-
other union, or when it grants nonemployee access for an-
tiunion activity while denying nonemployee access for
prounion activity. But we believe the scope of Babcock’s
discrimination exception is not limited to such circum-
stances. In our view, a standard that allows an employer,

held that a public-school district did not discriminate by granting access
to its internal mail system to various outside organizations while prohib-
iting access to a nonincumbent union. The Court explained that even
assuming the school district had created a “limited public forum” by
granting access to the Cub Scouts, the YMCA, and parochial schools,
“the constitutional right of access would in any event extend only to other
entities of a similar character” that, like the organizations previously per-
mitted access, engage in “activities of interest and educational relevance
to students,” but it did not have to grant access to the nonincumbent un-
ion, “which [was] concerned with the terms and conditions of teacher
employment.” Id.
19 As the foregoing discussion demonstrates, the dissent mischarac-
terizes our position when she claims that we “view union solicitation and
distribution as inherently ‘disruptive’ simply because a union is in-
volved” and that, under the standard we adopt today, “union representa-
tives will always fall into their own, unique category—and thus can
never suffer discrimination, because no other person will ever be suffi-
ciently similar to serve as a comparator.” These are not the only state-
ments in our colleague’s dissent that misrepresent our views. For exam-
ple, the dissent asserts that our decisions in this case and in UPMC, 368
NLRB No. 2 (2019), and Bexar County Performing Arts Center, 368
for example, to grant access to nonemployee handbillers
urging a boycott of the employer for environmental rea-
sons while denying access to nonemployee handbillers
urging a boycott in connection with a labor dispute insuf-
ficiently accounts for the protection of Section 7 interests.
Disparate treatment of this nature reasonably supports an
inference of hostility to union activity rather than legiti-
mate opposition to any group that seeks to injure the em-
ployer’s business interests, and therefore it would reason-
ably tend to interfere with employees’ own Section 7 ac-
tivity in a manner that, in our judgment, the Babcock Court
did not intend to countenance. See Babcock, supra at 113–
114 (recognizing that the Act requires that “the employer
refrain from interference, discrimination, restraint or coer-
cion in the employees’ exercise of their own rights”).19
4. The new standard: Babcock discrimination is the
unequal treatment of activities similar in nature.
For all the foregoing reasons, we overrule Sandusky
Mall and other Board decisions to the extent they adopt a
similarly broad interpretation of Babcock’s discrimination
exception.20 We hold instead that an employer discrimi-
nates within the meaning of the Babcock discrimination
exception when it treats nonemployee activities that are
similar in nature disparately, and that the Board may not
find discrimination when the nonemployee activities per-
mitted by an employer on its property are not similar in
nature to those that it prohibited. See Sandusky Mall v.
NLRB, 242 F.3d at 690; Riesbeck Food Markets v. NLRB,
91 F.3d 132 at *3. We agree with the 4th Circuit that an
employer “has a strong interest in preventing the use of its
property for conduct which directly undermines its pur-
poses, i.e., the sale of goods and services to [its] custom-
ers,” Riesbeck, 91 F.3d 132 at *4, and that protest and boy-
cott activities undermine that strong interest, unlike
NLRB No. 46 (2019), make it lawful to engage in “discrimination in its
most obvious form” by “[s]ingling out union activity for negative treat-
ment.” Our colleague also indulges in misrepresentation by implication.
Thus, she says we hold today that “mere opposition to statutorily pro-
tected activity” is “a legitimate reason for exercising the property
owner’s right to exclude an unwelcome person.” The obvious and there-
fore intended implication is that we believe property owners have a right
to exclude persons engaged in statutorily protected activity because it is
statutorily protected—not because the activity injures the owner’s busi-
ness, and the owner has never permitted access by nonemployees seeking
to injure its business. Disagreement forcefully expressed is every Board
member’s right, but statements like these test the limits of fair argument.
20 Additionally, because our interpretation of Babcock’s discrimina-
tion exception permits an employer to tolerate substantial charitable so-
licitation without requiring it to grant access to nonemployee union
agents to engage in protest or organizational activities, we overrule Ham-
mary Mfg. Co., supra, and like cases to the extent they hold that an em-
ployer violates the Act if it excludes nonemployee union agents while
granting nonemployee access for more than a small number of isolated
beneficent acts.
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 11
charitable, civic, and commercial activities (which, in fact,
may promote its business interests). For this reason, we
hold that protest and boycott activities are not sufficiently
similar in nature to charitable, civic, or commercial activ-
ities to warrant a finding of discrimination based on dis-
parate treatment of such conduct, regardless of the amount
of charitable, civic, or commercial activities permitted.
This approach, which focuses on whether the permitted
and prohibited nonemployee activities are similar in na-
ture, will apply equally to nonemployee organizational
activity. Thus, we will permit an employer to ban nonem-
ployee access for union organizational activities if it also
bans comparable organizational activities by non-labor
groups, such as membership drives by fraternal societies
and religious organizations.
B. Retroactive Application of the Revised Standard
We find it appropriate to apply our new standard retro-
actively. The Board’s “usual practice is to apply new pol-
icies and standards retroactively to all pending cases in
whatever stage.” SNE Enterprises, 344 NLRB 673, 673
(2005) (internal citations and quotations omitted). In de-
termining whether to apply a change in law retroactively,
the Board must balance any ill effects of retroactivity
against “‘the mischief of producing a result which is con-
trary to a statutory design or to legal and equitable princi-
ples.’” SNE Enterprises, 344 NLRB at 673 (quoting Se-
curities & Exchange Commission v. Chenery Corp., 332
U.S. 194, 203 (1947)). In other words, the Board will ap-
ply a new rule “to the parties in the case in which the new
rule is announced and in other cases pending at the time
so long as [retroactivity] does not work a ‘manifest injus-
tice.’” Id. In determining whether retroactive application
will work a manifest injustice, the Board considers the re-
liance of the parties on preexisting law, the effect of retro-
activity on accomplishment of the purposes of the Act, and
any particular injustice arising from retroactive applica-
tion. Id.
After consideration of these factors, we find that retro-
active application of our new standard would not result in
any manifest injustice. We assume that nonemployee un-
ion agent Forester relied on Sandusky Mall and similar
Board cases in refusing to leave the Respondent’s prem-
ises until directed by the police. That reliance interest is
tempered here, however, by the uniform judicial hostility
to the Sandusky Mall standard. Further, retroactivity will
not result in any particular injustice to the parties in this
case. Forester departed the Respondent’s property when
directed to do so by the police; he was not arrested and did
not suffer any other adverse consequences. Dismissing
the complaint will not deny him any affirmative relief for
conduct that the Board would have found to be an unfair
labor practice under Sandusky Mall. For these reasons, we
will follow the Board’s usual practice and apply the stand-
ard we announce today to the present case and to all pend-
ing cases at whatever stage.
C. Application of the New Standard to the Instant Case
The judge found, and we agree, that nonemployee union
agent Forester, when asking the Respondent’s customers
to sign the boycott petition, “assist[ed]” a labor organiza-
tion or “engage[d] in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection” within the meaning of Section 7 of the Act. See
Salmon Run Shopping Center, LLC, 348 NLRB 658, 658
fn. 1 (2006) (finding that nonemployees of mall were en-
gaged in protected activity when they engaged in boycott
activities on mall’s premises), enf. denied on other
grounds 534 F.3d 108 (2d Cir. 2008). As explained above,
whether nonemployee Forester was statutorily entitled to
access the Respondent’s property turns on whether the Re-
spondent discriminated against his boycott activities by
granting access to other nonemployees to engage in com-
parable activities. The record shows that the Respondent
regularly allowed various charitable and civic entities onto
its property to solicit donations and raise funds, but there
is no evidence that the Respondent ever permitted any
nonemployees onto its property to urge its customers to
stop shopping at one of its stores. Accordingly, we reverse
the judge’s finding that the Respondent discriminated
against nonemployee union solicitation within the mean-
ing of Babcock’s discrimination exception, and we will
dismiss the complaint.
RESPONSE TO DISSENT
Our dissenting colleague criticizes our decision on sev-
eral grounds, none of which has merit. First, she contends
that the judge found the denial of union access unlawful
on the independent basis of “the 2014 letter” “clearly tar-
get[ing] union activity,” and that the Board should adopt
that finding without reaching the issue of discrimination.
The basis for this purported finding is the March 24, 2014
letter, quoted above, from the Respondent’s landlord, au-
thorizing the Respondent to remove any persons engaged
in “protesting, demonstrating, picketing, hand billing, or
related disruptive activities on the premises . . . (whether
or not involving a labor union).”
Contrary to the dissent, the judge did not find a violation
on these grounds, and she could not properly have done
so. The only unfair labor practice alleged in the complaint
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is discriminatory enforcement,21 and throughout this liti-
gation, the General Counsel has consistently taken the po-
sition that the sole issue presented is whether the Respond-
ent discriminatorily enforced its access restrictions.22 The
judge’s statement that the March 2014 letter “targeted un-
ions and other groups that wanted or tried to protest,
demonstrate, picket, handbill, or otherwise engage in what
was considered to be ‘related disruptive activities on the
premises’” did not—and consistent with principles of due
process, it could not—represent a finding that the Re-
spondent, separate and apart from any discriminatory en-
forcement, violated Section 8(a)(1) of the Act by promul-
gating uniformly applied access restrictions with an anti-
union motive. Accordingly, the question of whether the
Respondent promulgated access restrictions in response to
union activity is not before us, and we properly rule on the

21 The complaint alleges that “[a]bout April 2, 2015, Respondent, by
Diego Duran and Donati High, enforced [the access restriction in its
lease], selectively and disparately, by prohibiting representatives of the
Charging Party from soliciting signatures in the parking area adjacent to
Respondent’s facility; by demanding representatives of the Charging
Party leave the parking area adjacent to Respondent’s facility; and by
calling the police to remove representatives of the Charging Party from
the parking area adjacent to Respondent’s facility” (emphasis added).
22 In her opening statement, counsel for the General Counsel stated
that “this case presents a single issue, whether Respondent disparately
and discriminatorily enforced a no solicitation/no loitering rule against
the Union to prevent it from petitioning the public about a labor dispute
it had with the Respondent” (Tr. at 18). Consistent with that opening
statement and the complaint, the General Counsel’s answering brief to
the Board states: “This case presents a singular issue: whether Respond-
ent violated Section 8(a)(1) of the Act on or about April 2, 2015, when it
disparately and discriminatorily enforced a no solicitation/no loitering
rule against the Union . . .” (Br. at 1 (footnote omitted)). The General
Counsel does not argue that the judge made two separate unfair labor
practice findings, either of which would be sufficient to support the
judge’s recommended Order. Only the dissent makes this unsupportable
claim. That the Board has, in rare cases, found violations for different
reasons or on different theories than those advanced by the General
Counsel does not warrant doing so here. Simply put, we have decided
the precise issue the complaint frames and the parties have asked us to
resolve.
Our colleague’s reliance on United Food & Commercial Workers, Lo-
cal 400 v. NLRB, 222 F.3d 1030 (D.C. Cir. 2000), in support of her as-
sertion that the instant case should be decided on a different ground is
also unavailing. In that decision, the court remanded the case to the
Board because there was “no substantial evidence” to support the factual
basis of the Board’s decision. Id. at 1033–1034, 1039. No such circum-
stance exists here. The record supports our factual findings, and the par-
ties’ briefs squarely present the issue that we decide today.
We have explained why the dissent is mistaken in her criticism that
we have violated “the norm of exercising administrative restraint: dis-
posing of a case without deciding unnecessary issues.” But even aside
from its mistakenness, it is a criticism our colleague is not well situated
to level. See Miller & Anderson, Inc., 364 NLRB No. 39 (2016). In
Miller & Anderson, Member McFerran joined a Board majority that
overruled precedent to clear the way to an election, notwithstanding the
pendency of a motion to dismiss the representation petition supported by
a sworn affidavit stating that the petitioned-for unit did not exist. Two
Respondent’s exceptions to the judge’s finding of discrim-
inatory enforcement.23
Second, our dissenting colleague complains that we
have revisited Sandusky Mall without soliciting briefs
from the public. However, nothing in the Act, the Board’s
Rules, the Administrative Procedure Act, or procedural
due process principles requires the Board to invite amicus
briefing before reconsidering precedent, and the Board has
frequently overruled or modified precedent without solic-
iting additional briefing.24 Moreover, the continued valid-
ity of Sandusky Mall was squarely joined in the parties’
briefs, and we find it unnecessary to solicit additional in-
put in light of the uniform judicial hostility to Board deci-
sions finding that employers violate the Act by prohibiting
nonemployee union agents from engaging in protest
weeks later, the Regional Director granted the union’s request to with-
draw the petition. As an exercise in administrative unrestraint, Miller &
Anderson is unsurpassed.
23 The evidentiary support for a finding of discriminatory promulga-
tion is, in any event, slim at best. The letter cited by the judge and the
dissent was promulgated in March 2014, more than a year before the de-
nial of access at issue in this case. The only apparent basis for the judge’s
finding that it was promulgated in response to some other union activity
is former Store Manager Timothy Lynch’s vague testimony that he “be-
lieve[d]” that the landlord sent the letter to the Respondent because “the
Union had come and wanted to do some solicitation at the store.”
Because the charge in this case was filed on June 30, 2015, Sec. 10(b)
precludes any finding that the promulgation of the letter itself violated
the Act. Our colleague posits that the letter nevertheless demonstrates
“the Respondent’s antiunion motive in ejecting Forester from the parking
lot,” but she fails to justify her position that a letter, issued by the Re-
spondent’s landlord, is persuasive evidence of the Respondent’s motives
for actions it took more than a year after the letter was written. This is
especially true since the letter proscribes “any protesting, demonstrating,
picketing, hand billing, or related disruptive activities on the premises
. . . (whether or not involving a labor union)” (emphasis added).
24 See, e.g., E.I. Du Pont de Nemours, 364 NLRB No. 113 (2016)
(overruling 12-year-old precedent in Courier-Journal, 342 NLRB 1093
(2004), and 52-year-old precedent in Shell Oil Co., 149 NLRB 283
(1964), without inviting briefing ); Graymont PA, Inc., 364 NLRB No.
37 (2016) (overruling 9-year-old precedent in Raley’s Supermarkets &
Drug Centers, 349 NLRB 26 (2007), without inviting briefing); Loomis
Armored U.S., Inc., 364 NLRB No. 23 (2016) (overruling 32-year-old
precedent in Wells Fargo Corp., 270 NLRB 787 (1984), without inviting
briefing); Lincoln Lutheran of Racine, 362 NLRB 1655 (2015) (overrul-
ing 53-year-old precedent in Bethlehem Steel, 136 NLRB 1500 (1962),
without inviting briefing); Pressroom Cleaners, 361 NLRB 643 (2014)
(overruling 8-year-old precedent in Planned Building Services, 347
NLRB 670 (2006), without inviting briefing); and Fresh & Easy Neigh-
borhood Market, Inc., 361 NLRB 151 (2014) (overruling 10-year-old
precedent in Holling Press, 343 NLRB 301 (2004), without inviting
briefing). Our colleague cites her dissent in Bexar County Performing
Arts Center Foundation, 368 NLRB No. 46, slip op. at 14 fn. 2 (2019),
where she offered post hoc justification in each of the cited cases for not
inviting briefing. Here as in Bexar, this is beside the point. As stated
above, the Board had no legal obligation to justify its decision not to
invite briefing in these or any of the many other cases over the decades
in which it has overruled precedent without amicus briefing.
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 13
activities on their property while tolerating charitable,
civic, or commercial activities by other nonemployees.25
Third, the dissent argues that our position was “ex-
pressly repudiated” by “the only Supreme Court decision
that provides substantive guidance in this area,” NLRB v.
Stowe Spinning, supra. The dissent contends that Stowe
Spinning compels the Board to find unlawful discrimina-
tion when an employer denies access to nonemployee un-
ion agents seeking to engage in protest activities after hav-
ing granted access to organizations such as the Girl Scouts
and the American Red Cross to engage in charitable, civic,
or commercial activities. According to the dissent, the
Court’s decision precludes the Board from analyzing
whether the conduct of nonemployee union agents is sim-
ilar in kind to the conduct of other nonemployees tolerated
by an employer on its property. The dissent vastly
overreads Stowe Spinning.
As we recently explained in UPMC, 368 NLRB No. 2
(2019), the Supreme Court in Stowe Spinning upheld the
Board’s finding that the employer had violated the Act
when it refused to allow the union to use the only available
meeting hall in a company town. The union had requested
to use a meeting hall in the company-owned post office.
Most of the building had been built by the employer for
use by the Patriotic Order Sons of America. Stowe Spin-
ning, 336 U.S. at 228. The president of the Patriotic Order
initially granted the union’s request, but the employer sub-
sequently denied the request because it had come from a
“textile organizer.” Id. at 229. Moreover, the Patriotic
Order had allowed third parties to use the hall in the past,
and the employer had never interfered with the Patriotic
Order’s use or rental of the hall to third parties. Id. Thus,
the Court upheld the Board’s finding that the denial con-
stituted “unlawful disparity of treatment and

25 There is also no merit to the dissent’s claim that our decision today
is somehow inconsistent with the Board’s announced intent to engage in
future rulemaking regarding access to an employer’s private property.
Any rules adopted in that proceeding will apply prospectively only. See
Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988); 5 U.S.
C. § 551(4). It would be unfair to the parties to this case to make them
wait for a resolution of their dispute until the conclusion of a rulemaking
that cannot resolve it. We will consider with an open mind all comments
received in response to any future notice of proposed rulemaking, and
we trust that our colleague will do the same.
26 The employer in Stowe Spinning did not contest the Board’s finding
“that antiunion bias was the cause for [the] refusal of the hall.” 336 U.S.
at 230 fn. 7. There was, moreover, no suggestion in Stowe Spinning that
the nature of the proposed union meeting differed in any way from the
third-party meetings the employer had allowed. Further, neither the
Board nor the Court in Stowe Spinning relied on discrimination alone.
See id. at 233 (noting that the Board “found that the refusal [of access]
. . . was unreasonable because the hall had been given freely to others,
and because no other halls were available for organization”) (emphasis
supplied); id. at 230 (“We cannot equate a company-dominated North
Carolina mill town with the vast metropolitan centers where a number of
discrimination against the union” because the denial was
based solely on the requesting party’s identity as a union
organizer.26 Our decision today, which turns on the nature
of union agent Forester’s conduct and its dissimilarity
with the conduct of nonemployees tolerated by the Re-
spondent on its property, in no way conflicts with the Su-
preme Court’s prohibition against discrimination based
solely on union identity.
Finally, we reject the dissent’s attempt to frame the con-
duct at issue as “solicitation of customers,” as though all
solicitation is the same, and the related premise that if an
employer that has allowed some nonemployee solicitation
ever bars nonemployee union access, it necessarily fol-
lows that “the employer’s real objection is not to solicita-
tion and distribution by outsiders on its property, but ra-
ther to the presence of union representatives.” All solici-
tation is not the same, and it defies common sense to sug-
gest that employers never object to a boycott solicitation
because it calls for a boycott rather than because of the
identity of the messenger. That absurd assumption is the
premise underlying Sandusky Mall, and, as shown, every
circuit court that has squarely considered that premise to
date has rejected it.27 We do likewise here.
CONCLUSION
The Board has had no success in obtaining enforcement
in any court of any unfair labor practice finding based on
a Babcock discrimination theory absent evidence that the
permitted activities were similar in nature to the prohibited
nonemployee union activity. That interpretation of Bab-
cock is consistent with the policies of the Act, while at the
same time giving due recognition to an employer’s prop-
erty right to exclude nonemployees. The Supreme Court
has instructed the Board time and again that the Act con-
strains that right only in narrow and limited
halls are available within easy reach of prospective union members.”).
Indeed, Phillips Petroleum Co., 92 NLRB 1344 (1951), a case cited by
the dissent, describes the holding of Stowe Spinning as follows: “[I]t was
a violation of Sec. 8 (1) of the Wagner Act for an employer to discrimi-
nate against a union by refusing it permission to use a company-owned
meeting hall in an isolated company town, where such a building was the
only available meeting place in the immediate vicinity.” Id. at 1348.
27 Our colleague asserts that “of the adverse decisions” we cite, “not
one is expressly premised on the fact that union representatives were so-
liciting for a boycott.” This is irrelevant. As we have shown, various
courts have held that all solicitation is not the same and that there is a
legally significant difference between, for example, permitted charitable
solicitation and prohibited do-not-patronize solicitation. See, e.g.,
Riesbeck Food Markets, Inc. v. NLRB, 91 F.3d at 132; NLRB v. Pay Less
Drug Stores Northwest, Inc., 57 F.3d at 1077. Further, our colleague’s
reliance on Eastex, Inc. v. NLRB, 437 U.S. 556, 573 (1978), is misplaced.
That case involved the right of employees to distribute literature in non-
working areas of a plant during their nonwork time. Eastex did not in-
volve an attempt by nonemployees to access an employer’s property to
urge customers not to patronize the employer’s business.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
circumstances. Sandusky Mall paid insufficient heed to
that instruction. Our decision today respects it.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 6, 2019
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
In a series of decisions reversing Board precedent with-
out prior notice, the majority has made it increasingly easy
for employers to exclude both employees and union or-
ganizers from property open to the public, in order to pre-
vent their exercise of labor-law rights. In UPMC,1 the ma-
jority allowed a hospital to exclude union organizers from
a cafeteria because they were talking to hospital employ-
ees about union issues over lunch. In Bexar County Per-
forming Arts Center,2 the majority allowed an arts venue
to eject symphony musicians employed there because they
passed out leaflets to ballet patrons on a sidewalk, asking
them to support live music at performances. Today, the
majority allows a grocery chain—which had regularly
permitted solicitation by other groups—to bar a union rep-
resentative from its parking lot, because he asked shoppers
to sign a petition supporting workers who sought transfers
from a closing store. Applying a standard announced in

1 368 NLRB No. 2 (2019).
2 368 NLRB No. 46 (2019).
3 NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949).
4 See, e.g. Four B. Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir.
1998), enfg. Price Chopper, 325 NLRB 186 (1997).
5 See Johnson Controls, Inc., 368 NLRB No. 20, slip op. at 17 & fn.
25 (2019) (Member McFerran, dissenting); UPMC, 368 NLRB No. 2,
slip op. at 18 & fn. 56 (2019) (Member McFerran, dissenting); Su-
perShuttle DFW, Inc., 367 NLRB No. 75, slip op. at 15 & fn. 2 (2019)
(Member McFerran, dissenting); Alstate Maintenance, LLC, 367 NLRB
No. 68, slip op. at 12 & fn. 18 (2019) (Member McFerran, dissenting);
E.I. Du Pont de Nemours, Louisville Works, 367 NLRB No. 12, slip op.
at 3–4 (2018) (Member McFerran, dissenting); Boeing Co., 366 NLRB
No. 128, slip op. at 9–10 (2018) (Members Pearce and McFerran,
UPMC, the majority confirms what was already clear: that
its new approach—which ostensibly assesses whether an
employer has barred property access by nonemployee un-
ion representatives “while permitting similar activity in
similar relevant circumstances by other nonemployees”—
contradicts the understanding of discrimination reflected
in the Supreme Court’s 1949 Stowe Spinning decision and
in more than 70-years’ worth of Board decisions.3 Sin-
gling out union activity for negative treatment—discrimi-
nation in its most obvious form—is precisely what the
Court outlawed in Stowe, and, until recently, it has never
been lawful under the National Labor Relations Act.
The majority here also doubles down on two other basic
errors of its UPMC decision. First, to overrule precedent,
the majority reaches out to decide an issue that is not re-
quired to resolve the case before the Board. Here, the
judge found that the Respondent violated the Act by
adopting and then implementing a no-solicitation policy
directly in response to union activity. That explicit mo-
tive-based determination easily supports finding a viola-
tion here, making it unnecessary to reach the disparate-
treatment issue.4 Instead, the majority passes over the
judge’s finding and dismisses the complaint. Second, as
it has done many times now,5 the majority again reverses
precedent on a major labor-law issue without providing
notice to the public and inviting briefs. Curiously, the ma-
jority recently announced its intention to “engage in rule-
making to establish the standards . . . for access to an em-
ployer’s property”6—an action that would necessarily re-
quire the submission and consideration of public com-
ments. Public participation is valuable, but now is the
time to seek it—not after the Board has already remade
access law through adjudication.
I.
In my dissent in UPMC, supra, I laid out the relevant
legal landscape:7 In 1956, the Supreme Court established
the basic rule that governs nonemployee access cases un-
der Section 8(a)(1) of the National Labor Relations Act:
dissenting); Raytheon Network Centric Systems, 365 NLRB No. 161, slip
op. at 22 (2017) (Members Pearce and McFerran, dissenting); PCC
Structurals, Inc., supra, slip op. at 14, 16 (Members Pearce and McFer-
ran, dissenting); Hy-Brand Industrial Contractors, Ltd. and Brandt Con-
struction Co., 365 NLRB No. 156, slip op. at 36, 38 (2017) (Members
Pearce and McFerran, dissenting), vacated 366 NLRB No. 26
(2018); Boeing Co., 365 NLRB No. 154, slip op. at 30–31 (2017) (Mem-
ber McFerran, dissenting); UPMC, 365 NLRB No. 153, slip op. at 17–
19 (2017) (Member McFerran, dissenting).
6 National Labor Relations Board, Semiannual regulatory agenda, 84
Fed. Reg. 29776 (June 24, 2019).
7 UPMC, supra, 368 NLRB No. 2, slip op. at 9–10 (dissenting opin-
ion).
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 15
[A]n employer may validly post his property against
nonemployee distribution of union literature if reasona-
ble efforts by the union through other channels of com-
munication will enable it to reach the employees with its
message and if the employer’s notice or order does not
discriminate against the union by allowing other distri-
bution.
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956)
(emphasis added). Babcock & Wilcox thus creates a general
rule permitting employers to exclude nonemployees, with
two exceptions: (1) if employees are inaccessible to the un-
ion; or (2) if the employer “discriminate[s] against the union
by allowing other distribution.” Id.8
Babcock & Wilcox involved only the inaccessibility ex-
ception to the general rule. The discrimination exception,
as recognized by the Court, was grounded in existing
Board case law and in an earlier Supreme Court decision,
Stowe Spinning.9 As I will explain, both before and after
Babcock & Wilcox, the Board has ordered access to em-
ployer property based on the employer’s discriminatory
exclusion of union representatives. The Board has con-
sistently taken a broad view of what constitutes discrimi-
nation sufficient to trigger an access obligation, focusing
simply on whether the employer has permitted nonunion
actors to engage in solicitation and distribution on its prop-
erty, regardless of whether those actors were otherwise
similarly situated to the union in terms of their identity or
aims.10 The Board has never deemed union solicitation
and distribution to be inherently distinguishable from the
same conduct carried out by other actors because it may
communicate a particular message or may otherwise trig-
ger the employer’s opposition. Stowe Spinning reflects
the Supreme Court’s clear endorsement of the Board’s ap-
proach.
The majority today, building on its recent decision in
UPMC, radically narrows the scope of the discrimination
exception, holding that:

8 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (reaffirming in-
accessibility exception of Babcock & Wilcox and rejecting Board’s ap-
proach to cases not involving discriminatory denials of access). The
Lechmere Court rejected the Board’s “multifactor balancing test” apply-
ing the inaccessibility exception, which called for an accommodation of
Sec. 7 rights and employer property rights in every case. The Court held,
rather, that only where inaccessibility has first been demonstrated does it
“become[] necessary and proper to take the accommodation inquiry to a
second level, balancing the employees’ and employers’ rights.” 502 U.S.
at 538.
9 NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949).
10 See, e.g., Sandusky Mall Co., 329 NLRB 618 (1999) (mall owner
violated Sec. 8(a)(1) by excluding area-standards picketers of mall tenant
while permitting access to various charitable, civic, and other organiza-
tions), enf. denied 242 F.3d 682 (6th Cir. 2001); Four B. Corp. d/b/a
Price Chopper, 325 NLRB 186, 186–188, (1997) (retail grocer violated
an employer may deny access to nonemployees seeking
to engage in protest activities on its property while al-
lowing nonemployee access for a wide range of charita-
ble, civic, and commercial activities that are not similar
in nature to protest activities.
It holds also that “an employer may ban nonemployee access
for union organization activities if it also bans comparable or-
ganizational activities by groups other than unions.” As I will
explain, this approach cannot be squared with either Supreme
Court precedent or statutory policy. In fact, it creates a li-
cense for an employer to permit almost any third-party activ-
ity on its property but union solicitation and distribution—a
result that cannot stand.
A.
The facts here are straightforward and undisputed. In
their key aspects, they make this case essentially indistin-
guishable from the many decisions since the 1940’s where
the Board has found unlawful discrimination. Here, too,
an employer excluded a union representative from prop-
erty where other persons, with no union connection, had
been permitted to solicit customers. In this case, moreo-
ver, it is clear that the employer acted from an unlawful
motive, because the employer’s general prohibition
against so-called “disruptive activities” was itself adopted
in response to peaceful union activity, a fact sufficient to
invalidate it. Both of these grounds independently support
finding a violation of Section 8(a)(1) here.
1.
The Union has represented a unit of the Respondent’s
employees including those at Kroger 538 in Portsmouth,
Virginia—the site of the incident in this case—since 2010.
In late-2014, the Respondent opened two new stores, one
in Portsmouth and the other in nearby Suffolk, Virginia.
Employees at the new stores were not represented by a un-
ion. At the same time, the Respondent decided to close
Kroger 538. During May and April 2015, the Respondent
and the Union discussed the effects of Kroger 538’s
Sec. 8(a)(1) by banning union organizers after permitting various chari-
table and civic groups to solicit its customers), enfd. 163 F.3d 1177 (10th
Cir. 1998); D’Alessandro’s, Inc., 292 NLRB 81, 83–84 (1988) (retail
grocer violated Sec. 8(a)(1) by excluding area-standards picketers while
permitting a wide range of commercial, charitable, and civic access);
Chrysler Corp., 232 NLRB 466, 466 (1977) (vehicle manufacturer vio-
lated Sec. 8(a)(1) by prohibiting union organizational activity in its park-
ing lot while permitting a wide variety of commercial activity), affd. sub
nom. Smith v. NLRB, No. 77-1938, 1979 WL 6182 (D.C. Cir. 1979) (un-
published); Priced-Less Discount Foods, 162 NLRB 872, 872 fn. 1, 875
(1967) (retail grocer violated Sec. 8(a)(1) by excluding union organizers
from its parking lot while permitting other charitable, religious and civic
access); United Aircraft Corp., 67 NLRB 594, 602–604 (1946) (manu-
facturer violated the Act by excluding union organizers from property it
controlled while permitting various commercial solicitors).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
closure on unit employees. The Union sought the oppor-
tunity for unit employees to transfer to the nearby newly
opened stores in Portsmouth and Suffolk, but the Re-
spondent offered transfers only to more distant stores al-
ready covered by the Union’s collective-bargaining agree-
ment.
On April 2, 2015, the Respondent’s District Human Re-
sources Coordinator Diego Duran met with Union Repre-
sentative Heith Fenner and Kroger 538 employees to dis-
cuss the store closure. During this meeting, another
nonemployee Union Representative, Brandon Forester,
asked customers in the store parking lot to sign a petition
stating:
As a loyal Kroger customer and member of the Ports-
mouth community I am appalled that Kroger is taking
good jobs out of our town and forcing the employees
who have helped me at my store for years move to a
store over 25 miles away. I will not shop at either of the
newly opened Marketplace stores unless the employees
at this store are allowed to transfer there with all the ben-
efits they currently enjoy as union members.
The judge found that Forester’s activity was peaceful
and not disruptive. As the judge found, and my colleagues
recognize, Forester’s appeal to the Respondent’s custom-
ers to support unit employees was clearly protected by
Section 7 of the National Labor Relations Act.11
Duran and store manager Donati High sought direction
from a district manager about how to address Forester’s
activity. The district manager advised Duran and High
that Forester’s activity was prohibited pursuant to a March
2014 letter from the Respondent’s landlord.12 In that let-
ter, the landlord expressed its desire to prevent “disruptive
activities or nuisances that have a potentially adverse im-
pact on our tenants and their customers, our shopping cen-
ter and the community at large” and to ensure the “contin-
uous and smooth operation of the shopping center.” The

11 “Employees indisputably have a Section 7 right to concertedly ap-
peal to their employer’s customers for support in a labor dispute.”
Macy’s, Inc., 365 NLRB No. 116, slip op. at 3 (2017). It follows that,
had the individuals soliciting customers in the parking lot here been off-
duty Kroger employees, the Babcock & Wilcox framework for evaluating
nonemployee access would not apply and their activities would be indis-
putably protected by the Act. See Nashville Plastic Products, 313 NLRB
462, 463 (1993) (holding that off-duty employees were entitled to access
to outside nonworking areas of employer’s property and expressly reject-
ing the argument that “off-duty employees should be viewed in the same
light as nonemployee union organizers for purposes of defining their
right of access to the Respondent’s property.”). Here, of course, the
ejected union representative represented the Respondent’s employees,
but was denied access to an area from which off-duty employees could
not lawfully have been excluded.
letter stated that “no person or organization (whether or
not involving a labor union)” was permitted to engage in
“any protesting, demonstrating, picketing, handbilling or
related disruptive activities on the premises;” it directed
that anyone engaging in these activities be dealt with as a
trespasser and removed from the property.
Officials Duran and High confronted Union Represent-
atives Forester and Fenner in the parking lot with a copy
of that letter and told them to leave the Respondent’s prop-
erty. Forester declined to do so until the police were called
and then peacefully departed when asked to do so by a po-
lice officer. The judge found that, although Kroger 538
did not have a formal or written policy regarding how to
handle requests to solicit on store property, its unofficial
policy was to forward all requests to the store manager to
review them and to approve or disapprove them on an ad
hoc basis. The record establishes that, prior to excluding
its employees’ union representative, the Respondent per-
mitted or tolerated extensive solicitation of its custom-
ers—near its entrance and in its parking lot—by a wide
variety of civic, religious, commercial, and charitable or-
ganizations, including the Girl Scouts, the Salvation
Army, the Lion’s Club, the American Red Cross, local
firefighters, the Boy Scouts, veterans groups, a breast can-
cer awareness group, a church group collecting donations
for the homeless and battered women and placing flyers
on cars, local dance club promoters, and college students
selling encyclopedias.
On this basis, the judge correctly concluded that the Re-
spondent violated the Act “by excluding union solicitation
on its premises while at the same time favoring and per-
mitting charitable and civic solicitation activity.”
Longstanding Board precedent establishes that the Re-
spondent’s exclusion of union solicitors, considered in
light of its toleration of solicitation on its property by other
outsiders, was unlawful under the Babcock discrimination
exception. The many Board decisions supporting the
judge’s conclusion span decades.13
12 The Respondent leased the property at issue and shared with other
tenants a common right of easement in the parking lot. No party disputes
that the landlord conferred on the Respondent, via a term in the parties’
lease, a sufficient property interest to exclude trespassers from the park-
ing lot; the record establishes that neither the landlord nor the Respond-
ent uniformly enforced this lease term.
13 See, e.g., Chrysler Corporation, supra, 232 NLRB at 477 (nonem-
ployee sales of “pizzas, chicken dinners, and other goods, wares, and
merchandise”), affd. sub nom. Smith v. NLRB, No. 77-1938, 1979 WL
6182 (D.C. Cir. February 7, 1979) (unpublished); Montgomery Ward &
Co., 256 NLRB 800, 810 (1981) (nonemployee solicitation for the Amer-
ican Bar Association or the Girl Scouts), enfd. 692 F.2d 1115 (7th Cir.
1982), cert. denied 461 U.S. 914 (1983); Knogo Corp., 262 NLRB 1346,
1361 (1982) (nonemployee food vendor), enfd. in relevant part 727 F.2d
55 (2d Cir. 1984); Montgomery Ward & Co., 288 NLRB 126, 126–127,
182–183 (1988) (nonemployee political solicitation and Girl Scout
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 17
2.
Although the majority’s decision focuses entirely on the
finding of discrimination, the judge separately found too
that the 2014 letter, which the Respondent used to justify
its removal of Forester, “clearly targeted unions” in its
prohibition on protesting, demonstrating, picketing, and
handbilling. In this respect, the judge credited testimony
from Timothy Lynch, the manager of Kroger 538 when
the letter issued in March 2014, stating his understanding
that the origin of the letter “was due to the fact that the
Union had come and wanted to do some solicitation at the
store.” The judge also noted that no one disputed Lynch’s
testimony that the letter issued in response to the Union’s
desire to solicit at Kroger 538.
On this basis, the judge found that the letter clearly tar-
geted union activity, establishing the Respondent’s anti-
union motive in ejecting Forester from the parking lot.
This finding, too, was correct, and it independently estab-
lishes a violation of Section 8(a)(1). See, e.g. Four B.

cookie sales), remanded on other grounds 904 F.2d 1156 (7th Cir. 1990);
D’Alessandro’s, Inc., supra, 292 NLRB at 82–84 (nonemployee fund-
raising by Girl Scouts, Salvation Army, YMCA, and Jaycees and nonem-
ployee advertising and sales of cars, boats, trailers, Christmas trees and
firewood); Ordman’s Park & Shop, 292 NLRB 953, 955–956 (1989)
(nonemployee fundraising by school cheerleaders, Lions Club, Jaycees,
youth football association, and Lutheran Church and use by Chamber of
Commerce); Food Lion, Inc., 304 NLRB 602, 603–604 (1991) (nonem-
ployee fundraising by the Salvation Army, the Knights of Columbus, the
Junior Chamber of Commerce, the Girl Scouts, the Lions Club, the Pan
African Church, “and other organizations of a similar nature.”); Davis
Supermarkets, 306 NLRB 426, 427 & fn. 5 (1992) (nonemployee church
and school organizations and a rival union’s nonemployee organizers),
enfd. on other grounds 2 F.3d 1162 (D.C. Cir. 1993); Richards United
Super, 308 NLRB 201, 202 (1992) (nonemployee fundraising by the
Shriners, the Salvation Army, little league baseball teams, the Boy
Scouts, and school organizations and nonemployee commercial leaf-
letting by a donut shop, an auto repair company, an auto parts store, and
an antique and gun show); Great Scot, Inc., 309 NLRB 548, 549 (1992)
(“a half-dozen [nonemployee] charitable and civic organizations, such as
the Port Clinton High School Band Boosters”), enf. denied on other
grounds 39 F.3d 678 (6th Cir. 1994); Pay Less Drug Stores Northwest,
Inc., 312 NLRB 972, 974 (1993) (nonemployee fundraising by Girl
Scouts, a school or athletic group, and a classic car club), enf. denied 57
F.3d 1077 (9th Cir. 1995) (unpublished table decision); Riesbeck Food
Markets, Inc., 315 NLRB 940, 940–941 (1994) (nonemployee fundrais-
ing by volunteer fire departments, various youth sport groups, Easter
Seals, V.F.W., and the Salvation Army), enf. denied, 91 F.3d 132, (4th
Cir. 1996) (unpublished); Big Y Foods, Inc., 315 NLRB 1083, 1085
(1994) (nonemployee solicitation by the Knights of Columbus, the Lions
Club, Wilbraham Brownie Troupe, Harrington Women’s Club,
Longmeadow Council on Aging, Oxford Dog Pound Committee, Starr’s
Library, Springfield Central High Key Club, Springfield Christian
School, Christ Church Day School, St. Patrick’s School, St. Catherine’s
Athletic Association, Pop Warner Football, Torrington Varsity Basket-
ball, George Hummel Little League, Gathering Pentecostal Church, St.
Jude’s Hospital, the American ex-POWs, the Committee to elect Attor-
ney Barbara Green, and a petitioner to abolish the Blue Laws of Massa-
chusetts); Cleveland Real Estate Partners, 316 NLRB 158, 166–167
(1995) (nonemployee fundraising by schoolchildren and a petitioner to
Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir. 1998)
(holding that where “[s]ubstantial evidence supports the
Board’s finding that [access] ban was motivated by an
anti-union animus . . . [court] need go no further to find
that [the employer] violated section [Section] 8(a)(1).”),
enfg. Price Chopper, 325 NLRB 186 (1997).14
B.
The majority’s decision to reverse precedent is wrong—
indeed, impermissible under Supreme Court law. Before
explaining why, it is important to highlight the longstand-
ing procedural norms that are bypassed to reach today’s
result.
First, is the norm of exercising administrative restraint:
disposing of a case without deciding unnecessary issues.15
Here, the majority passes over the judge’s express finding
that the Respondent—in adopting and enforcing its no-
demonstrating/no-picketing/no-handbilling policy—acted
with antiunion animus. The Board could and should find
a violation of Section 8(a)(1) on this basis.16 There is no
put a term-limit proposition on a state ballot), enf. denied 95 F.3d 457
(6th Cir. 1996); Be-Lo Stores, 318 NLRB 1, 10–11 (1995) (nonemployee
fundraising by Lions Club and Girl Scouts, literature distribution by Je-
hovah’s Witnesses and Lyndon LaRouche followers and commercial
sales of a cookbook, oils, and incense), enf. denied in relevant part, 126
F.3d 268, 284 (4th Cir. 1997); Schear’s Food Center, 318 NLRB 261,
262 (1995) (nonemployee solicitation by the Seventh-Day Adventist
Church and Girl Scouts and Jaycees voter registration drive); Great
American, 322 NLRB 17, 24, 28–29 (1996) (nonemployee solicitation
by Veterans of Foreign Wars, the American Cancer Society, the Salva-
tion Army, the League of Women Voters, “and other similar organiza-
tions.”); Four B Corp. d/b/a Price Chopper, supra, 325 NLRB at 186–
187, 192 (nonemployee solicitation by “various civic and charitable or-
ganizations” including the Salvation Army and the Shriners), enfd. 163
F.3d 1177 (10th Cir. 1998); Sandusky Mall Co., supra, 329 NLRB at 619
(nonemployee solicitation by Arthur Murray dance, Young American
Miss Pageant, United Way, Easter Seals, the American Lung Associa-
tion, the Salvation Army, and the American Red Cross); Albertson’s Inc.,
332 NLRB 1132, 1133 (2000) (nonemployee solicitation and literature
distribution by the Salvation Army, Camp Fire Boys and Girls Clubs,
Boy Scouts, Girl Scouts, Brownies, public schools, other youth and
school organizations, the Veterans of Foreign Wars, and the Disabled
Veterans of America), enf. denied 301 F.3d 441 (6th Cir. 2002).
14 Accord Cannondale Corp., 310 NLRB 845, 847 (1993) (em-
ployer’s no-solicitation rule unlawful because promulgated in response
to protected activity); State Chemical, 166 NLRB 455 (1967) (same).
See also Bigg’s Foods, 347 NLRB 425, 425 fn. 7, 433 (2006) (em-
ployer’s amendment to no-distribution rule unlawful because promul-
gated in response to off-duty employees’ union handbilling activities);
Providence Hospital, 285 NLRB 320, 322–323 (1987) (same).
15 To take just one example, the Board routinely finds it unnecessary
to pass on one ground for a finding a violation of the Act, when another
ground presents a clearly sufficient basis. See, e.g., UPMC, 366 NLRB
No. 142, slip op. at 1, fn. 5 (2018).
16 Contrary to the majority, the judge did, in fact, make a finding of
antiunion animus, and he was entirely justified in doing so based on the
record evidence. The majority contends that any such finding was pre-
cluded by the General Counsel’s failure to raise this theory of the viola-
tion in his complaint. But “the Board, with court approval, has repeat-
edly found violations for different reasons and on different theories from
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
need, then, for the Board to reach the issue that my col-
leagues use as a vehicle for revisiting the law and revers-
ing long-established, consistently-applied, and judicially-
approved precedent.17
Second, the majority breaks with the norm of encourag-
ing public participation in the Board’s decision-making, at
least where important labor-law issues are at stake. Here,
the majority again overrules well-established precedent
without first providing notice to the public and inviting
briefs.18 There is no good reason for the Board to deprive
itself of the benefits of public participation.19 But the ma-
jority’s action here is particularly confounding in light of
the Board’s recent announcement, via a semiannual regu-
latory agenda in the Federal Register, that it plans in the
near future to “engage in rulemaking to establish the
standards under the National Labor Relations Act for ac-
cess to an employer’s private property.”20 Because to-
day’s decision and other recent decisions already make
major changes in this area of the law, interested members
of the public will feel not only surprised, but perhaps mis-
led. And if the proposed aim of future rulemaking is to
codify then-existing law—that is, to turn the majority’s re-
cent reversals of precedent into Board rules—then the

those of . . . the General Counsel, even in the absence of exceptions,
where the unlawful conduct was alleged in the complaint.” Local 58,
International Brotherhood of Electrical Workers, AFL–CIO (Paramount
Industries, Inc.), 365 NLRB No. 30 (2017), slip op. at 4, fn. 17, enfd. 888
F.3d 1313 (D.C. Cir. 2018), and the judge properly did so here. See, e.g.,
Hawaiian Dredging Construction Co., 362 NLRB 81, 82 fn. 6 (2015);
Pepsi America, Inc., 339 NLRB 986 (2003); Jefferson Electric Co., 274
NLRB 750, 750–751 (1985), enfd. 783 F.2d 679 (6th Cir. 1986). See
also, e.g., NLRB v. WTVJ, Inc., 268 F.2d 346, 348 (5th Cir. 1959) (en-
forcing Board decision that found a violation on a theory different from
the one relied upon by the judge, despite the General Counsel and the
charging party’s failure to except to the judge’s decision).
The violation is alleged in the complaint—which contended, among
other things, that the Respondent violated Sec. 8(a)(1) by “selectively
and disparately . . . . prohibiting representatives of the Charging Party
from soliciting signatures in the parking area adjacent to Respondent’s
facility.” Moreover, the factual basis for the violation is clear from the
record, the law is well established, and no due process concerns are im-
plicated. See Paramount Industries, supra, 365 NLRB No. 30, slip op.
at 4, fn. 17. Specifically, the Respondent had an opportunity to rebut
Lynch’s testimony regarding the adoption and enforcement of the rule,
but failed to do so.
In addition, I reject the majority’s assertion that the letter could not
constitute evidence of the Respondent’s antiunion motive because it had
originated with the Respondent’s landlord. As the judge found, the Re-
spondent’s express reliance on a letter that “clearly targeted unions” as
well as “its own unwritten practice and policy,” discriminated against the
Union and violated the Act. See, e.g. Ward Manufacturing, Inc., 152
NLRB 1270, 1271 (1965) (finding unlawful the employer’s application
of rule that was adopted and promulgated “for a discriminatory pur-
pose.”).
17 In United Food & Commercial Workers, Local 400 v. NLRB, 222
F.2d 1030 (D.C. Cir. 2000), the D.C. Circuit reversed a Board decision
that had overturned precedent when the facts of the case did not present
process will surely seem arbitrary. Comment would be
invited on proposed legal rules that had recently been
adopted through adjudication, but without public partici-
pation. The rulemaking process, then, would merely serve
to ratify new changes in Board law, rather than present an
occasion for open-minded consideration of whether such
changes are warranted in the first place.21
II.
For decades, the Board has dealt with claims that an em-
ployer’s discriminatory denial of access to nonemployee
union representatives violated Section 8(a)(1) of the Act,
because it “interfere[d] with, restrain[ed], or coerce[d]
employees in the exercise of the rights guaranteed in
[S]ection 7 of the Act.” 29 U.S.C. §158(a)(1).22 The ana-
lytical starting point, as suggested, is the Supreme Court’s
decision in Babcock & Wilcox, which—drawing on Board
decisions and the Court’s own earlier decision in Stowe
Spinning—recognized a discrimination exception to the
general rule permitting employers to exclude nonem-
ployee union representatives from their property. No
post-Babcock & Wilcox decision of the Court (including
Lechmere) has applied, explained, or modified the dis-
crimination exception.23
the issue decided. This case, too, could and should be decided on an
entirely different ground than the one chosen by the majority.
18 See fn. 5, supra. Indeed, a previous Board solicited public input
when it announced its decision to consider this very issue. See Roundy’s,
Inc., 30–CA–17185 (Nov. 12, 2010) (Notice and Invitation to File
Briefs), https://www.nlrb.gov/case/30-CA-017185. (That case ulti-
mately settled before the Board issued a decision.)
19 Rather than offer a rationale for rejecting public participation here
(and elsewhere), the majority simply asserts that the Board “has fre-
quently overruled or modified precedent without soliciting additional
briefing.” But the six cases the majority cites are all distinguishable from
this one. See Bexar County Performing Arts Center, 368 NLRB No. 46,
slip op. 14 at fn. 2 (2019), for a full discussion of why these cases do not
support the majority’s decision to forgo briefing here and in other recent
decisions.
20 National Labor Relations Board, Semiannual regulatory agenda, 84
Fed. Reg. 29776 (June 24, 2019).
21 In response, the majority asserts that, because any rule will apply
prospectively only, it would “be unfair to the parties to this case to make
them wait for a resolution of their dispute until the conclusion of a rule-
making that cannot resolve it.” But I do not suggest that course of action
at all. Indeed, the most obvious way around this problem would be to
resolve the current case under longstanding precedent and to wait for the
promised rulemaking to propose any sweeping changes in this area of the
law.
22 I n cases like this one, it is Sec. 8(a)(1) of the Act that is implicated,
not the Act’s general prohibition against “discrimination in regard to hire
or tenure of employment or any term or condition of employment,” em-
bodied in Sec. 8(a)(3). 29 U.S.C. §158(a)(3).
23 In Lechmere, the issue was whether the union had reasonable ac-
cess to employees outside the employer’s property. No issue of discrim-
ination was involved. As the Lechmere Court observed, the employer’s
prohibition against solicitation and distribution on its property had been
“consistently enforced . . . inside the store as well as on the parking lot
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 19
A.
In Babcock & Wilcox, the Court held that the Board had
erred in applying the same rules of law regarding access
to both employees and nonemployees, neglecting a “dis-
tinction . . . of substance” between the two. 351 U.S. at
113. The Board had relied upon its rule, affirmed by the
Supreme Court in Republic Aviation,24 that employers
could not lawfully prohibit their employees from distrib-
uting union literature on company property, on nonwork-
ing time. But the standard adopted by the Babcock & Wil-
cox Court preserved one aspect of the Board’s established
approach that did treat claims by employees and nonem-
ployees identically: An employer was permitted to ex-
clude union representatives only if did “not discriminate
against the union by allowing other distribution.” Id. at
112.
Discrimination was not an issue in the case before the
Court, but the Court’s opinion took care to note cases in
which “[a]n element of discrimination existed,” including
its own decision in Stowe Spinning, supra. Id. at 111 fn.
4.25 In finding a right to access for nonemployee union
organizers at least where discrimination was established,
the Babcock & Wilcox Court endorsed the prevailing judi-
cial view,26 and upheld (to this extent) established Board
doctrine. In its brief in the case, notably, the Board had
urged the Court to preserve the Board’s prohibition on em-
ployer “rules which permit solicitation for all causes

(against, among others, the Salvation Army and the Girl Scouts).” 502
U.S. at 530 fn. 1.
In Sears, Roebuck & Co. v. San Diego County District Council of
Carpenters, 436 U.S. 180 (1978), the Supreme Court had considered
Babcock & Wilcox in addressing whether a state court trespass lawsuit
directed against union area standards picketing was preempted by the
Act. The Court described Babcock & Wilcox as holding that “[t]o gain
access, the union has the burden of showing that no other reasonable
means of communicating its organizational message to the employees
exists or that the employer’s access rules discriminate against union so-
licitation.” 436 U.S. at 205 (emphasis added).
24 Republic Aviation Corp. v. NLRB, 324 U.S 793 (1945), aff’g
LeTourneau Co. of Georgia, 54 NLRB 1253 (1944).
25 The Babcock & Wilcox Court observed that “[a]n element of dis-
crimination existed in the Carolina Mills case [Carolina Mills, Inc., 92
NLRB 1141 (1951)], . . . such as existed in [Stowe Spinning], . . . but this
was not relied upon in the opinion.” 351 U.S. at 683 fn. 4. In Carolina
Mills, the employer had prevented nonemployee union representatives
from distributing literature on its property near plant entrances and on
the plant parking lot, but had no general rule prohibiting distribution and
(after excluding the union) had “permitted the distribution of literature
on the parking lot.” 92 NLRB at 1165–1166.
See also Note, “Not as a Stranger”: Non-Employee Union Organizers
Soliciting on Company Property, 65 Yale L. J. 423, 423 & fn. 4, 425 &
fn. 21 (1956) (cited in Babcock & Wilcox for its collection of cases and
itself citing, in turn, cases involving the discriminatory denial of access
to nonemployee union organizers, such as United Aircraft Corp., 67
NLRB 594, 603–604 (1946)).
26 Babcock & Wilcox affirmed the decision of the United States Court
of Appeals for the 5thCircuit, which denied enforcement of the Board’s
except unions, or which permit distribution of all types of
literature except union.”27
B.
The Supreme Court’s decision in Stowe Spinning—de-
cided 7 years before Babcock & Wilcox and cited with ap-
proval there—illustrates the then-prevailing judicial ac-
ceptance of the Board’s approach to discriminatory deni-
als of access.
In Stowe Spinning, the Court endorsed the Board’s hold-
ing that an employer violated Section 8(a)(1) of the Act by
permitting outside community groups to use an employer-
owned meeting hall, while prohibiting its use by union or-
ganizers. The Court observed that the meeting hall “had
been given freely to others” and that “[w]hat the Board
found . . . is discrimination.” 336 U.S. at 233. The Court
rejected the dissenting view of Justice Jackson that “dis-
crimination . . . could hardly occur unless some other un-
ion had been allowed to use the hall.” 336 U.S. at 235
(dissent)(emphasis added). A version of the dissenting
view had been taken by the court below, the 4th Circuit,
whose decision the Court reversed.28 Instead the Court
endorsed the Board’s broader view of discrimination and
its holding that the employer’s prohibition against union
use of the meeting hall “constituted unlawful disparity of
treatment and discrimination.” Id. at 229, quoting Stowe
Spinning Co., 70 NLRB 614, 622 (1946).29
order. NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (5th Cir. 1955).
The 5th Circuit had observed that
[T]he courts have held that Section 7 of the Act . . . gives a right to a
non-employee to enter and solicit union membership on employer’s
premises under two general situations, the first of which is where there
has been discrimination. . . .
Id. at 318, citing (inter alia) Stowe Spinning, supra. But, as the 5th
Circuit noted, the rule at issue “had always and uniformly been enforced
in a completely non-discriminatory way.” Id.
27 Brief for the National Labor Relations Board, NLRB v. Babcock &
Wilcox Co., 1955 WL 72467 at * 36 (U.S.).
28 NLRB v. Stowe Spinning Co., 165 F.2d 609 (4th Cir. 1947). In
denying enforcement to the Board’s order, the 4th Circuit had opined:
There is no general provision of the Act which requires an employer to
treat a labor union in the same manner as it treats other persons or or-
ganizations which are not concerned with the interests or activities of
labor.
* * *
[A]cts of discrimination on the part of an employer by which one labor
organization or one employee is favored over another or discriminated
against in the free exercise of rights under the statute may amount to
unfair labor practices and violations of the Act. None of these practices,
however, are involved in the use or non-use of the assembly hall.
165 F.2d at 611.
29 The Board’s traditional approach to employer discrimination in-
volving employees who engage in solicitation or distribution at work is
entirely consistent with Stowe Spinning: Disparate treatment is estab-
lished if the employer treats union-related activity less favorably than
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board in Stowe Spinning had applied a balancing
test to resolve the access issue before it, finding that the
employer’s “bare property right”—the employer did “not
claim that ‘inconvenience’ or ‘dislocation of property
rights’ would result from the [u]nion’s use of its prop-
erty—was outweighed by the union’s statutory interest in
using the meeting hall. 70 NLRB at 623–624. The Board
emphasized the “arbitrariness . . . of [the] decision” deny-
ing access “which resulted in the discriminatory treatment
of the [u]nion,” and it cited earlier Board decisions in
which similar discriminatory denials of access to union
representatives had been found unlawful. Id. at 622 & fn.
9, 624.
Stowe Spinning, in short, reflected the Board’s already
well-established approach. By the time of the Supreme
Court’s 1956 decision in Babcock & Wilcox, Board deci-
sions had found that an employer violated the Act by
denying access to nonemployee union organizers where it
had previously admitted teachers and entertainers,30 ven-
dors,31 and religious organizations and social societies.32
Phillips Petroleum Co., 92 NLRB 1344, 1346 (1951), pro-
vides one illustrative example. There, the Board found
that an employer unlawfully discriminated against union
organizers by prohibiting them from using a meeting hall
that had been previously used for social gatherings, safety
meetings, and church services. The Board observed:
While it is true that the [employer] may not be under an
obligation to provide such a meeting place, once having
provided it, the [employer] cannot thereafter arbitrarily
and for no valid reason select the [u]nion for special
treatment by denying its use. Discrimination of this na-
ture is here admitted.
Id. at 1349 (emphasis added).
C.
My colleagues criticize the Board’s 1999 decision in
Sandusky Mall—a routine application of the longstanding

solicitation and distribution that have no relation to labor issues, and not
merely when the employer favors one union’s supporters over another’s
or favors antiunion activity over prounion activity. See, e.g., Greenville
Cabinet Co., 102 NLRB 1677, 1698–1699 (1953), citing Standard-
Coosa-Thatcher Co., 85 NLRB 1358, 1364–1365 (1949). See also Note,
No-Solicitation and No-Distribution Rules: Presumptive Validity and
Discrimination, 112 U. Pa. L. Rev. 1049, 1060–1061 (1964) (collecting
cases).
30 Weyerhaeuser Timber Co., 31 NLRB 258, 263 (1941).
31 United Aircraft Corp., 67 NLRB 594, 607 (1946).
32 Stowe Spinning Co., supra, 70 NLRB at 621. See also Gallup
American Coal Co., 32 NLRB 823, 828–829 (1941), enfd. 131 F.2d 665
(10th Cir. 1942) (employer violated Sec. 8(a)(1) where it allowed adver-
tisers and religious groups, but not a union, to put signs on its property).
33 Sec. 7 of the Act provides in relevant part that “[e]mployees shall
have the right to self-organization, to form, join, or assist labor
principles described—for “echo[ing] Babcock’s terse lan-
guage [regarding discrimination] as though its meaning
were self-evident.” It is true that in recognizing the dis-
crimination exception, the Supreme Court’s opinion in
Babcock & Wilcox did not itself fully explain it. But, as
noted, the Supreme Court’s exception originated not with
Babcock & Wilcox, but rather with Stowe Spinning. And
traditional Board doctrine, endorsed by the Stowe Spin-
ning Court, does indeed reflects a rationale: Where an em-
ployer has permitted solicitation and distribution on its
property by nonemployees other than union representa-
tives—as opposed to uniformly prohibiting access by
nonemployees for such purposes—the employer’s claim
that granting access to the union would burden its property
rights is necessarily weakened, for purposes of the Act.
The Babcock & Wilcox Court explained that access
cases involving nonemployee union representatives re-
quire the Board to balance the rights affirmatively pro-
tected by Section 7 of the National Labor Relations Act33
with the property rights of employers:
This is not a problem of always open or always closed
doors for union organization on company property. Or-
ganization rights are granted to workers by the same au-
thority, the National Government, that preserves prop-
erty rights. Accommodation between the two must be
obtained with as little destruction of one as is consistent
with the maintenance of the other. The employer may
not affirmatively interfere with organization; the union
may not always insist that the employer aid organization.
* * *
The determination of the proper adjustment rests with
the Board.
351 U.S. at 112.34
As already discussed, pre-Babcock & Wilcox Board de-
cisions involving the access claims of nonemployee union
organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.” 29 U.S.C.
§157. Sec. 2(3) of the Act defines “employee” to “include any employee,
. . . not limited to the employees of a particular employer, unless the Act
explicitly states otherwise. . . . ” 29 U.S.C. §152(3).
34 The Court had made essentially the same point in Stowe Spinning,
supra, observing that:
It is not “every interference with property rights that is within the Fifth
Amendment *** Inconvenience or even some dislocation of property
rights may be necessary in order to safeguard the right to collective bar-
gaining.”
336 U.S. at 232 (ellipsis in original), quoting Republic Aviation, supra, 324
U.S. at 802 fn. 8.
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 21
representatives engage in the balancing of interests en-
dorsed by the Court. They make clear that where employ-
ers have freely granted access to nonemployees other than
union representatives (as the Respondent did here), then
the employer’s real objection is not to solicitation and dis-
tribution by outsiders on its property, but rather to the
presence of union representatives. The employer’s con-
duct has demonstrated that its legitimate property interests
are not impaired by solicitation and distribution by outsid-
ers—including union representatives. Thus, insofar as the
Act is concerned, the exclusion of union representatives is
arbitrary and therefore unlawful. Put somewhat differ-
ently, in the context of discrimination, the employer’s bare
property right to exclude unwelcome persons is not enti-
tled to weight in the statutory balancing test used to deter-
mine access. If statutory rights are to be preserved, mere
opposition to statutorily protected activity cannot be a le-
gitimate reason for exercising the property owner’s right
to exclude an unwelcome person.35 Today, of course, the
majority holds otherwise.

35 The Board’s decisions, however, did not require proof of the em-
ployer’s antiunion motive to establish a violation of Sec. 8(a)(1). Con-
temporary judicial decisions had held that an unlawful motive was not
an element of a 8(a)(1) violation. See, e.g., NLRB v. Illinois Tool Works,
153 F.2d 811, 814 (7th Cir. 1946) (rule prohibiting employee solicitation
during nonworking hours violated Sec. 8(a)(1) unlawful, absent evidence
that rule was necessary to maintain production or preserve discipline, re-
gardless of employer’s motive). Subsequently, the Supreme Court made
clear that:
[I]t is only when the interference with §7 rights outweighs the business
justification for the employer’s action that §8(a)(1) is violated.... A vio-
lation of §8(a)(1) alone therefore presupposes an act which is unlawful
even absent a discriminatory motive.
Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263,
268 (1965) (citations omitted; emphasis added).
36 See, e.g., Priced-Less Discount Foods, supra, 162 NLRB at 875
(“The fact that [the employer] permitted approved causes, such as school
and church groups, to use the parking lot for solicitation purposes, is
proof that [the employer] did not consider soliciting as such on the park-
ing lot as any interference to its business operations or in any other way
prejudicial to it.”).
37 As the Supreme Court emphasized in Lechmere, supra, which re-
jected the Board’s approach to the inaccessibility exception as incon-
sistent with Babcock & Wilcox, once the Court has “‘determined a stat-
ute’s clear meaning, . . . it judge[s] an agency’s later interpretation of the
statute against [the Court’s] prior determination of the statute’s mean-
ing.’” 502 U.S. at 537, quoting Maislin Industries, U.S, Inc. v. Primary
Steel, Inc., 497 U.S. 116, 131 (1990).
38 The 1st and 3d Circuits appear never to have considered the scope
of the Babcock discrimination exception. The 2d, 4th, 6th, and 9th Cir-
cuits have taken a different approach from the Board. Thus, multiple
decisions by the 6th Circuit following Cleveland Real Estate Partners v.
NLRB, 95 F.3d 457 (6th Cir. 1996), denying enf. to 316 NLRB 158
(1995), and the 2d Circuit’s decision in Salmon Run Shopping Center,
LLC v. NLRB, 534 F.3d 108 (2d Cir. 2008), denying enf. to 348 NLRB
658 (2006) have denied enforcement to Board orders in this area. Non-
precedential decisions by the 4th and 9th Circuits—relied upon by
In the decades after Babcock & Wilcox, as indicated, the
Board regularly has found that discriminatory denials of
access to nonemployee union representatives violate Sec-
tion 8(a)(1). Its decisions, if not always fully explicated,
are consistent with the rationale of the Board’s early deci-
sions36—and, of course, with the Supreme Court’s access
standard, the force of which is independent of any ra-
tionale that the Board offers (or fails to offer) for it.37 Alt-
hough the federal courts of appeals are divided, a majority
of the Circuits that have addressed the issue—the 5th, 7th,
8th, 10th, and District of Columbia Circuits—have ap-
proved the Board’s approach.38
The 5th Circuit has observed that, under Babcock, “a
no-solicitation rule is discriminatory only if the employer
allows non-union solicitation (for example, solicitation by
charitable organizations).”39 Similarly, the 7th Circuit af-
firmed the Board’s conclusion that a retail sales employer
violated the Act by excluding union organizers from its
cafeteria pursuant to a policy which would have permitted
similar solicitation for the American Bar Association or
the Girl Scouts.40 The 8th and 10th Circuits have likewise
today’s majority—have also disagreed with the Board’s established
standard. See Riesbeck Food Markets, Inc. v. NLRB, 91 F.3d 132 (4th
Cir. 1996) (unpublished table decision), denying enf. to 315 NLRB 940
(1994); NLRB v. Pay Less Drug Stores Northwest, Inc., 57 F.3d 1077
(9th Cir. 1995) (unpublished table decision), denying enf. to 312 NLRB
972 (1993). Additionally, two precedential decisions by the 4th Circuit
have denied enforcement to Board orders on grounds not implicating the
Board’s standard. Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir. 1997)
(holding exclusion of union agents was not Babcock discrimination
where court found that isolated exceptions to employer’s no-solicitation
policy were not sufficiently widespread to establish it had permitted
“other distribution”), denying enf. to 318 NLRB 1 (1995); NLRB v.
Southern Maryland Hospital Center, 916 F.2d 932 (4th Cir. 1990) (court
found no discrimination where employer had permitted nonemployee ac-
cess not including nonemployee solicitation), denying enf. to 293 NLRB
1209 (1989).
39 Belcher Towing Co. v. NLRB, 614 F.2d 88, 90 (5th Cir. 1980) (em-
phasis added) (holding employer did not unlawfully discriminate by
denying access to union organizers while permitting other nonemployee
access for purposes other than solicitation), denying enf. to 238 NLRB
446 (1978). The 11th Circuit appears never to have addressed the issue,
but has adopted 5th Circuit precedent predating October 1, 1981—in-
cluding Belcher Towing—as binding. See, e.g., Security Walls, Inc. v.
NLRB, 921 F.3d 1053, 1057 fn. 6 (11th Cir. 2019) (citing Bonner v. City
of Prichard, 661 F.2d 1206 (11th Cir. 1981)).
40 Montgomery Ward & Co. v. NLRB, 692 F.2d 1115, 1123 (7th Cir.
1982), enfg. 256 NLRB 800 (1981), cert. denied 461 U.S. 914 (1983).
The 7th Circuit decision in Montgomery Ward also relied upon a balanc-
ing analysis similar to the Board’s Jean Country analysis abrogated by
the Supreme Court in Lechmere. 692 F.2d at 1123–1128. That part of
the court’s Montgomery Ward decision is, accordingly, no longer good
law. See New York, New York, 313 F.3d 585, 589 (D.C. Cir. 2002). But
nothing in Lechmere calls into question Montgomery Ward’s interpreta-
tion of the Babcock discrimination exception.
A different 7th Circuit decision, Guardian Industries Corp. v. NLRB,
49 F.3d 317 (7th Cir. 1995) involved an employer’s policy governing
employee postings on its bulletin boards. The majority notes that the 2d
Circuit relied on Guardian Industries in its only case to examine the
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
enforced Board decisions finding discrimination under
Babcock without drawing a distinction between union so-
licitation and similar nonemployee charitable, civic, or
commercial activity.41 Finally, the District of Columbia.
Circuit has consistently reflected the same understanding
of the controlling Supreme Court interpretation of the Act.
Thus, in affirming the Board’s finding that a hospital dis-
criminated by excluding union organizational solicitation
while permitting a variety of other nonemployee solicita-
tion on its property, the court observed that “[t]he fact that
the nonemployee solicitations permitted by the employer
are ‘charitable’ in nature, however, is not in itself suffi-
cient to immunize the practice of disparately treating un-
ion solicitations.”42 The court went on to find the nonem-
ployee solicitations at issue there “indistinguishable in na-
ture from Union solicitations.” Id. at 592 (emphasis
added). Subsequent opinions from the District of Colum-
bia Circuit reflect the same understanding of Babcock and
Stowe.43
D.
As articulated by the Babcock & Wilcox Court, the dis-
crimination exception is triggered when the employer
“discriminate[s] against the union by allowing other dis-
tribution.” 351 U.S. at 112 (emphasis added). The
Court’s opinion gave no indication that “other

Babcock discrimination exception, Salmon Run Shopping Center. But
Babcock itself settled that different legal standards apply to employees
and nonemployees. Similarly, the majority’s reliance on 6 West Ltd.
Corp. v. NLRB, 237 F.3d 767, 780 (7th Cir. 2001) is misplaced because
the solicitations permitted there were—as in Guardian Industries—by
employees, and therefore legally distinguishable from the prohibited
nonemployee union organizational solicitations.
41 North Memorial Health Care v. NLRB, 860 F.3d 639, 646–647 (8th
Cir. 2017) (hospital’s prohibition on nonemployee union representatives’
union activity in cafeteria associated with informational picket was un-
lawful Babcock discrimination where employer did not similarly inter-
fere with nonemployee conversations in cafeteria about other subjects),
enfg. 364 NLRB No. 61 (2016); Four B. Corp. v. NLRB, 163 F.3d 1177
(10th Cir. 1998) (finding Babcock discrimination where retail grocer
banned union organizers after granting access to “various charitable
groups”), enfg. Price Chopper, 325 NLRB 186 (1997).
42 Lucile Salter Packard Children’s Hospital at Stanford v. NLRB, 97
F.3d 583, 587 fn. 4 (D.C. Cir. 1996) (citing Stowe Spinning, above, 336
U.S. at 233), enfg. 318 NLRB 433 (1995) The Lucile Salter court also
rejected the same argument relied upon by today’s majority that a differ-
ent result was required by the Supreme Court’s First Amendment deci-
sion in Perry Education Assn. v. Perry Local Educator’s Assn., 460 U.S.
37 (1983). 97 F.3d at 592. In Perry, the Court found that a school that
permitted outside groups integrally related to the school’s primary edu-
cational purpose to use its mail system was not thereby obligated by the
First Amendment to provide similar access to groups with no such rela-
tionship. Id. The D.C. Circuit found persuasive the Board’s argument
in Lucile Salter that the permitted nonemployee use there was not com-
parable to the use permitted in Perry, because it was not integral to the
hospital’s purpose. Id. Here, similarly, the numerous nonemployee ac-
tivities permitted by the Respondent are clearly not integral to the
distribution” referred to only certain types of distribution
by other nonemployees apart from the union. Indeed, as
explained, in Stowe Spinning, the Court had already re-
jected the dissenting view of Justice Jackson, and the sim-
ilar position of the 4th Circuit below, that “discrimination”
could only mean disparate treatment of rival unions or dis-
parate treatment of union supporters and union opponents,
and was not implicated by disparate treatment of union
representatives compared with “other persons or organi-
zations which are not concerned with the interests or ac-
tivities of labor” (in the 4th Circuit’s phrase, 165 F.2d at
611). The Board’s approach has, as a general rule, hewed
closely to Babcock & Wilcox and Stowe Spinning (and the
Board precedent on which those decisions drew) in declin-
ing to apply the discrimination exception narrowly.44
III.
Today’s decision fundamentally changes that approach,
in a manner that, as I will explain, is at odds with Stowe
Spinning, and misconstrues the meaning of discrimination
within the framework of Section 8(a)(1).
A.
In UPMC, the majority here held that the employer (a
hospital) did not violate the Act by removing nonem-
ployee union representatives from a cafeteria that was
Respondent’s primary business purpose of selling groceries to its cus-
tomers.
43 See UFCW Local 400 v. NLRB, 222 F.3d 1030, 1036 fn. 8 (D.C.
Cir. 2000) (citing Lucille Salter Packard, above, at 587 & fn. 4) (address-
ing existence of property interest in exclusion from easements under Vir-
ginia law: “if [respondent] were permitted to exclude the organizers, it
could be required to exclude other solicitors, including in some circum-
stances charitable solicitors, in order to avoid a charge of anti-union dis-
crimination”), denying enf. to Farm Fresh, 326 NLRB 997 (1998);
American Postal Workers Union v. NLRB, 370 F.3d 25, 28–29 (D.C. Cir.
2004) (Postal Service did not discriminate under Babcock by excluding
nonemployee organizers, in part because “preexisting rule against com-
mercial or charitable solicitation” met Babcock requirement to “not dis-
criminate against the union by allowing other distribution.”) (emphasis
added), affg. USPS, 339 NLRB 1175 (2003).
The D.C. Circuit’s decision in Stanford Hospital and Clinics v. NLRB,
325 F.3d 334 (D.C. Cir. 2003), denying enf. in relevant part to UCSF
Stanford Health Care, 335 NLRB 488 (2001), is not to the contrary.
There, the court found no Babcock discrimination because it found no
“differential treatment of union and nonunion solicitors” when the hos-
pital ejected “a self-confessed serial violator of Stanford’s solicitation
and distribution rules” without disturbing “non-soliciting bench sitters.”
325 F.3d at 346.
44 In the nonemployee access context, the Board has developed two
principal limitations on the discrimination exception. First, it has held
that an employer does not discriminate against union-related distribution
or solicitation by permitting a small number of isolated charitable or “be-
neficent” acts. See Hammary Mfg. Corp., 265 NLRB 57 fn. 4 (1982).
Second, it has held that an employer does not discriminate against union
distribution or solicitation by permitting solicitations that relate to the
employer’s “business functions and purposes.” Postal Service, 339
NLRB 1175, 1178 (2003), enfd. 370 F.3d 25 (D.C. Cir 2004).
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 23
otherwise open to the public. In so holding, the major-
ity—citing Jean Country, a Board case that did not in-
volve the discrimination exception—defined discrimina-
tion as “disparate treatment where by rule or practice a
property owner bars access by nonemployee union repre-
sentatives seeking to engage in certain activity while per-
mitting similar activity in similar relevant circumstances
by other nonemployees.”45 Applying this new standard,
the Board overruled longstanding precedent and found
that there was “no evidence that the [employer had] know-
ingly allowed any other promotional or organizational ac-
tivity by nonemployees on its premises.”46 As I stated in
my dissent there, the majority’s new standard had “no
clear origin in Board case law involving access to em-
ployer property by nonemployee union representatives.”47
In addition, “the majority’s application of this principle
. . . reveals that the majority’s definition of ‘discrimina-
tion’ is actually impermissibly narrower than the Board’s
traditional, broad understanding of the principle—which
was endorsed by the Supreme Court in Stowe Spinning.”48
The majority made clear that—under its new formulation
of discrimination—union organizers could be removed
from the cafeteria simply for talking about the union.49
The majority today picks up where UPMC left off. Ap-
plying the same new standard articulated there, it holds
that “an employer may deny access to nonemployees seek-
ing to engage in protest activities on its property while al-
lowing nonemployee access for a wide range of charitable,
civic, and commercial activities that are not similar in na-
ture to protest activities.” Accordingly, it finds, contrary
to decades of Board precedent, that the Respondent did not
violate the Act by removing Forester—a union representa-
tive who was soliciting customer signatures for a peti-
tion—from its parking lot, even though it had routinely
permitted a wide range of third-party solicitation and dis-
tribution in the same area. The majority also holds that
“an employer may ban nonemployee access for union

45 368 NLRB No. 2 (2019), slip op. at 4 (internal quotation omitted).
46 Id., slip op. at 5.
47 Id., slip op. at 15.
48 Id., slip op. at 16.
49 Id., slip op. at 18.
50 For example, the 6th Circuit, has held that the “term ‘discrimina-
tion’ as used in Babcock means favoring one union over another, or al-
lowing employer-related information while barring similar union-related
information.” Cleveland Real Estate Partners, supra, 95 F.3d at 465.
The 2d Circuit has held that “[t]o amount to Babcock-type discrimi-
nation, the private property owner must treat a nonemployee who seeks
to communicate on a subject protected by section 7 less favorably than
another person communicating on the same subject.” Salmon Run Shop-
ping Center, supra, 534 F.3d at 116–117.
The7th Circuit, in a decision involving employee solicitation, has
found no discrimination where the employer prohibited union solicita-
tion, but permitted sales-related solicitation, while noting that
organizational activities if it also bans comparable activi-
ties by groups other than unions.” In reaching its decision,
the majority relies heavily on the holdings of federal ap-
pellate courts that have rejected the Board’s approach. At
its core, the majority’s view is that third party activities—
including charitable, civic, and commercial activities—
are not “sufficiently similar” to union activity to constitute
a basis for finding discrimination under the Act.
B.
The majority essentially adopts the approach rejected
by the Supreme Court in Stowe Spinning. Indeed, its po-
sition echoes that of the 4th Circuit in that case: that court
had insisted that the Act did not “require[ ] an employer to
treat a labor union in the same manner as it treats other
persons or organizations which are not concerned with the
interests or activities of labor,” 165 F.2d at 611, but its
decision was reversed on review. Likewise, several of the
court decisions cited by the majority take the position of
Stowe Spinning dissenting Justice Jackson (who would
have found unlawful only discrimination between favored
and disfavored unions, see 336 U.S. at 235).50 Because
the majority adopts a position that was expressly repudi-
ated by the Supreme Court, its holding cannot stand.51
Moreover, a close reading of Babcock & Wilcox—
which cited Stowe Spinning, as well as Board decisions
involving an “element of discrimination,” see infra—de-
cisively refutes the majority’s statements that the Board’s
traditional approach is “in tension with the Supreme
Court’s opinions in Lechmere and Babcock” and that the
Court has never provided a “specific definition” of dis-
crimination in this context.52 As I have emphasized, Bab-
cock & Wilcox, and Stowe Spinning before it, endorsed ex-
isting Board doctrine and rejected contrary positions.
Lechmere, in turn, did not address the discrimination ex-
ception at all. Determining what the Supreme Court
meant does not require waiting for clarification from the
Court. Nor is the Board free to substitute some new view
discrimination would have been established, if the employer had “al-
lowed employees to solicit business, political, religious, or other associ-
ation membership.” 6 West Limited Corp., supra, 237 F.3d at 780 & fn.
18. But in an earlier case involving union representatives’ access, the
7th Circuit found discrimination based, among other things, on the em-
ployer’s tolerance of an employee who “solicit[ed] fellow employees on
work time to buy cosmetics and jewelry.” Montgomery Ward, supra, 692
F.2d at 1123.
51 In contrast, the D.C. Circuit, endorsing the Board’s approach, has
relied upon Stowe Spinning Lucile Salter Packard Children’s Hosp. at
Stanford v. NLRB, 97 F.3d 583, 587 fn. 4 (1996) (“The fact that nonem-
ployee solicitations permitted by the employer are ‘charitable’ in nature
. . . is not in itself sufficient to immunize the practice of disparately treat-
ing union solicitations.”); see also Montgomery Ward & Co., Inc. v.
NLRB, 692 F.2d 1115, 1123 (7th Cir. 1982).
52 Cleveland Real Estate Partners, supra, 95 F.3d at 465.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of discrimination for the Court’s, just as the Board in
Lechmere was not free to depart from the inaccessibility
exception as defined in Babcock & Wilcox.53
Alarmingly, the majority decision—which purports to
present an authoritative overview of the relevant legal
landscape—mentions Stowe Spinning, the only Supreme
Court decision that provides substantive guidance in this
area, only in passing. And in its response to the dissent,
the majority mistakenly dismisses the significance of that
case, reasoning that, in Stowe, union representatives were
denied access “based solely on [their] identity as . . . union
organizer[s],” rather than their conduct (emphasis in orig-
inal).54 But the holding in Stowe Spinning included no
such limitation. In fact, Stowe Spinning made clear that
discrimination based solely on union affiliation—however
it is disguised or characterized—is not lawful.55 Tellingly,
Babcock & Wilcox cited Stowe Spinning in connection
with establishing the discrimination exception to the
nonemployee-access rule. Clearly, then, what the Bab-
cock & Wilcox Court regarded as discrimination in Stowe
Spinning—the denial of union access to the meeting hall,
while permitting its use by other community groups—is
what is relevant about that case (as Justice Jackson’s dis-
sent illustrates). See Marshall Field & Co. v. NLRB, 200

53 See Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor
Law §8.4 at 243–244 (2d ed. 2004) (describing 6th Circuit’s view as
“puzzling” in light of Stowe Spinning).
54 368 NLRB No. 2, slip op. at 6.
55 It is wrong, too, to suggest that Stowe Spinning provides no guid-
ance in cases like this one. Albertson’s, supra, 301 F.3d at 452 fn. 5. It
is true that Stowe Spinning “was not interpreting the ‘discrimination ex-
ception’ announced [later] in Babcock & Wilcox,” as the 6th Circuit has
observed, but this observation misses the point: i.e., that Babcock & Wil-
cox drew on Stowe Spinning, as well as on Board doctrine, in crafting the
discrimination exception.
Likewise, there is no basis to conclude that Stowe Spinning is some-
how “distinguishable on its facts” from the access cases in which the
Board has long applied the discrimination exception. Albertson’s, supra,
301 F.3d at 452 fn. 5. If, as the majority and the 6th Circuit have sug-
gested, Stowe Spinning turned on the union’s lack of reasonable alterna-
tive means of reaching employees, then the Babcock & Wilcox Court
would have cited the earlier decision as support not for the discrimination
exception, but rather for the inaccessibility exception also adopted there.
The Stowe Court focused its analysis on the question of discrimination
and noted the relative isolation of the company town where the meeting
hall was located only to respond to the argument that “the Board is now
invading private property unconnected with the plant, for a private pur-
pose.” Stowe Spinning, supra, 336 U.S. at 229. In any case, of course,
the Babcock Court cited Stowe as illustrating the discrimination excep-
tion recognized by the Court.
Nor, contrary to the 6th Circuit, does Stowe Spinning suggest that ev-
idence of unlawful antiunion animus, as reflected in other unfair labor
practices committed by the employer, is necessary (and not merely suf-
ficient) to trigger to the discrimination exception of Babcock & Wilcox.
Had the Supreme Court intended to create such a steep requirement for
finding discrimination, it presumably would have said so.
56 Notably, the Court in Stowe Spinning held that the proper remedy
was to order the employer to “refrain from any activity which would
F.2d 375, 379 (7th Cir. 1953) (“In upholding a Board or-
der permitting nonemployee organizers to use an em-
ployer-owned meeting hall, the court [in Stowe Spinning]
emphasized the antiunion discrimination resulting from
the fact that other organizations were permitted to use the
hall.”).56
Even accepting the majority’s mischaracterization of
Stowe Spinning, its reasoning fails here. The relevant con-
duct here is solicitation of customers. Where an employer
permits extensive third-party solicitation of customers on
its premises, its exclusion of union representatives is pow-
erful evidence that it is their identity (and not some inter-
ference with property interests) that is the basis for exclud-
ing them. This result is manifestly inconsistent with Su-
preme Court precedent.
The majority permits employers to treat union repre-
sentatives as distinct based on their supposed “boycott and
protest activities,” as opposed to their actual conduct: so-
licitation of customers. Whatever particular considera-
tions might be raised by a boycott message, the majority’s
notion of “boycott and protest activities” is so vague and
sweeping that it encompasses virtually every message that
a union representative might wish to communicate to cus-
tomers.57 The majority’s approach here is identical to the
cause a union’s application [to use the hall] to be treated on a different
basis than those of others similarly situated.” 336 U.S. at 233. In that
case, the Board had identified “similarly situated” parties as church
groups, school groups, civic societies, and a fraternal order without re-
gard to how closely their specific activities or conduct aligned with those
of the union representatives seeking access. 70 NLRB at 620–621. The
majority’s observation that there was “no suggestion in Stowe Spinning
that the nature of the proposed union meeting differed in any way from
the third-party meetings the employer had allowed” simply underscores
the fact that this was not a relevant consideration for the Board or the
Court.
57 Indeed, the majority’s attempt, in response to my dissent, to frame
today’s decision as narrowly addressing “boycott solicitation” is belied
by the broad nature of the holding here, which permits employers to
“deny access to nonemployees seeking to engage in protest activities.”
Presumably, had the majority’s primary concern been boycott solicita-
tion, it could have formulated a test creating a limited carve-out from the
general rule addressing that specific category of activity. Instead, it per-
mits an employer to preclude all nonemployee “protest activity,” a cate-
gory that is general and vague enough to encompass nearly all Sec. 7
activity. The majority today also permits an employer to “ban nonem-
ployee access for union organizational activities if it also bans compara-
ble organizational activities by groups other than unions.”
Notably, of the adverse court decisions that the majority cites, not one
is expressly premised on the fact that union representatives were solicit-
ing for a boycott. There is no suggestion in the cases that union repre-
sentatives’ message implicated the employer property rights or otherwise
justified their exclusion from the property. In an analogous situation in-
volving employee access to employer property, the Supreme Court has
explained that:
Even if the mere distribution by employees of material protected by
Sec. 7 can be said to intrude on petitioner’s property rights in any mean-
ingful sense, the degree of intrusion does not vary with the content of
the material. [The employer’s] only cognizable property right in this
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 25
approach it took in UPMC, where it permitted a hospital
to exclude union representatives from the cafeteria, be-
cause the majority deemed their lunchtime table conversa-
tions with employees—unlike other lunchtime conversa-
tions between employees and nonemployees—to be “pro-
motional.” For the majority, union representatives will al-
ways fall into their own, unique category—and thus can
never suffer discrimination, because no other person will
ever be sufficiently similar to serve as a comparator. Just
like the Respondent here, the majority seems to view un-
ion solicitation and distribution as inherently “disruptive”
simply because a union is involved.
Nor is the majority correct in asserting that “no policy
of the Act” supports the Board’s traditional doctrine in this
area. Indeed, the discrimination exception is properly un-
derstood only by focusing on its origins under the Act. In
contrast, the majority, as well as the Circuits that it cites
favorably, have approached the issue as if a broader, con-
ceptual analysis of “discrimination,” largely divorced
from the Act, were required. In adopting a narrower view
of what constitutes discrimination in the nonemployee-ac-
cess context, for example, the 2d Circuit in Salmon Run
Shopping Center—upon which the majority relies—drew
on a 7th Circuit decision involving employees’ bulletin-
board use, which rejected the Board’s approach as con-
trary to a perceived uniform “antidiscrimination principle”
at work in “many bodies of federal doctrine” from the First
Amendment to the Age Discrimination in Employment
Act. See Salmon Run, supra, 534 F.3d at 116, citing
Guardian Industries, supra, 49 F.3d at 319. Simply put,
however, this approach fails to take into account the ori-
gins of the discrimination exception, as reflected in

respect is in preventing employees from bringing literature onto its
property and distributing it there-not in choosing which distributions
protected by Sec. 7 it wishes to suppress.
Eastex, Inc. v. NLRB, 437 U.S. 556, 573 (1978) (emphasis added). So, here,
the “degree of intrusion” by the union representatives would not seem to vary
with their message.
58 See White, Modern Discrimination Theory and the National Labor
Relations Act, supra, 39 Wm. & Mary L. Rev. at 115–118 (contrasting
NLRA Sec. 8(a)(1) and disparate treatment under Title VII, and criticiz-
ing analysis of courts that have rejected Board’s approach to discrimina-
tion). As Professor White explains:
This [judicial] application of disparate treatment analysis, . . . although
wrong, is understandable. The lower courts routinely review disparate
treatment claims under Title VII, section 1981, section 1983, and the
Age Discrimination in Employment Act (ADEA). Questions of dis-
crimination under section 8(a)(1) appear far less frequently before the
appellate courts.
* * *
It is thus not surprising that these courts would draw on their under-
standing of disparate treatment theory in defining discrimination under
section 8(a)(1). Yet these courts are incorrect in so doing.
* * *
Babcock & Wilcox and Stowe Spinning, as well as the
larger context in the National Labor Relations Act and the
jurisprudence of Section 8(a)(1), a statutory provision that
is not an analogue of employment discrimination stat-
utes.58
Indeed, Section 8(a)(1) is intended affirmatively to pro-
mote the exercise of Section 7 rights (union solicitation
and distribution, for example), and not simply to shield
protected concerted activity from reprisal. As I have ex-
plained, the gravamen of the unfair labor practice under
Section 8(a)(1) is not antiunion discrimination, as it is un-
der Section 8(a)(3), which ordinarily focuses on employer
motive. The question rather, is whether there has been an
unreasonable interference with the exercise of Section 7
rights. Nonemployee access cases start from the premise
that some interference with Section 7 rights has oc-
curred—the employer has precluded employees from re-
ceiving an organizational message from union organizers
or from those organizers communicating a prounion mes-
sage to the public on the employees’ behalf.
The determination as to whether that interference is un-
lawful—that is, whether it is “unreasonable”—is made by
a balancing test in which weight is given to an employer’s
legitimate interests, including (in this context) the right to
exclude unwanted persons from its property.59 Discrimi-
nation, broadly understood, is relevant to the Board’s in-
quiry in nonemployee-access cases because of its relation-
ship to the employer’s asserted countervailing interest and
the extent to which it must properly be accommodated un-
der the Act—as the 7th Circuit itself has recognized in a
case like this one.60 Where an employer regularly has per-
mitted nonemployees to engage in solicitation and
[S]ection 8(a)(1) does not require animus for a violation. The question
instead is one of balancing employee rights against employer interests.
An employer that has opened a channel of communication within the
workplace for some purposes has a more difficult time explaining how
using that channel for organizational activity adversely affects its man-
agerial or property interests.
Id. at 116–117 (footnotes omitted).
59 This determination demonstrates the essential difference between
the analysis of violations of Sec. 8(a)(1) and violations of other employ-
ment laws, such as Title VII and those modeled on Title VII. The fact of
the interference with employee rights, regardless of the employer’s mo-
tivation, establishes the predicate for a violation, whereas under Title
VII, without improper employer motivation, there is no basis for finding
a violation.
60 See Montgomery Ward, supra, 692 F.2d at 1124 (“If a no-solicita-
tion rule is enforced in a discriminatory fashion, that fact goes to the
weight of employer’s interest: if non-union solicitation is permitted, does
the employer really care about the impact of this activity upon his prop-
erty or managerial rights?”). See also Sears, Roebuck & Co., supra, 436
U.S. at 226 & fn. 11 (Brennan, Stewart, and Marshall, Js., dissenting)
(agreeing with the majority that nonemployee area standards picketing
was arguably protected: “The fact of prior solicitation [by the Lion’s
Club, Salvation Army, and League of Women Voters] simply confirms
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
distribution on its property, but has denied access to union
representatives, the evidence strongly suggests that per-
mitting the union to engage in substantially the same ac-
tivity would not interfere with the employer’s use of the
property. In such circumstances, the balance between stat-
utory rights and the employer’s legitimate interests tips to-
ward requiring access.
The majority puts the conduct at issue in this case into
an ill-defined category of “boycott and protest activity”
that an employer may now bar at will. That step threatens
to cover any message that a union might seek publicly to
address to an employer, or to the employer’s customers, in
its capacity as a collective-bargaining agent. Such a stand-
ard abandons any attempt to safeguard statutory rights,
sacrificing them instead to the employer’s property rights.
It is inconceivable that this is what the Supreme Court in
Stowe Spinning or Babcock & Wilcox contemplated, much
less what Congress intended when it enacted Section 7 of
the National Labor Relations Act.
IV.
Compounding the damage it has already done to the ac-
cess rights of union representatives and employees, the
majority now comes dangerously close to eliminating the
discrimination exception altogether. By holding that es-
sentially no other activity is “sufficiently similar” to union
activity to form a basis for finding discrimination, the ma-
jority allows statutorily-protected activity to be targeted
for exclusion as “disruptive” (as the Respondent deemed
it here) This result—reached without inviting briefs, in a
case where the resolution of the discrimination issue is un-
necessary—is simply untenable under Supreme Court
precedent and the Act itself. For all of these reasons, I
dissent.
Dated, Washington, D.C. September 6, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Stephanie Cotilla Eitzen, Esq., for the General Counsel.
King F. Tower, Esq. (Woods Rogers, PLC), for the Respondent.

what would have been clear in any case: that the Union picketing was
not incompatible with [Sears’] retail operations.”).
1 All dates are in 2015 unless otherwise indicated.
2 For brevity purposes, Counsel for the General Counsel will be re-
ferred to as the “General Counsel.”
3 See Joint Exhibit 2 (Jt. Exh. 2) in which the parties have stipulated
to a number of facts concerning this case. Abbreviations used in this
Carey R. Butsavage, Esq. & Blaine Z. Taylor, Esq. (Butsavage
& Durkalski, PC), for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case
was tried in Norfolk, Virginia, on March 29, 2016. The United
Food and Commercial Workers Union, Local 400 (the Un-
ion/Local 400/Charging Party) filed the charge in this case on
June 30, 2015,1 and the General Counsel issued the complaint on
December 31, 2015.2 The complaint alleges that Partnership I
Mid-Atlantic (Respondent/Employer) violated Section 8(a) (1)
of the National Labor Relations Act (the Act) when it discrimi-
natorily enforced a no-solicitation/distribution rule by prohibit-
ing certain of the Union’s representatives from soliciting signa-
tures on a petition in the parking area adjacent to its facility; de-
manding that they leave that area; and calling the police to re-
move them from the area. In its timely filed answer, Respondent
denied the alleged violations of the Act and asserted several af-
firmative defenses.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited partnership, is engaged in the retail sale
of grocery items for home preparation and consumption, and has
operated stores throughout the state of Virginia, including the
store at issue in this case, Kroger 538 (Kroger 538), located in
Portsmouth, Virginia. During the 12-month representative pe-
riod ending on November 30, 2015, Respondent, in conducting
its operations, derived gross revenue in excess of $500,000. Dur-
ing the same period, Respondent purchased and received at Re-
spondent’s facility goods valued in excess of $5000 directly from
points located outside the State of Virginia. Therefore, Respond-
ent admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.3
Respondent also admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, Union and Respondent, I make the follow-
ing
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
From at least 1997 until it closed on April 11, 2015, Respond-
ent operated Kroger 538 located at 5601 High Street West,
decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “U. Exh.” for Un-
ion’s exhibit; “GC Br.” for General Counsel’s brief; “R. Br.” for Re-
spondent’s brief; and “U. Br.” for Union’s brief. Specific citations to the
transcript and exhibits are included where appropriate to aid review but
are not necessarily exclusive or exhaustive.
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 27
Portsmouth, Virginia. For all material times, Diego Duran (Du-
ran), Respondent’s district human resources coordinator, and
Donati High (High), Respondent’s Kroger 538 manager, were
supervisors and agents of Respondent within the meaning of Sec-
tion 2(11) and (13) of the Act.
Kroger 538 was situated on a parcel of land comprised of
about 55,000 square feet of “surface area” within a retail shop-
ping center owned by Sterling Creek Commons, Limited Part-
nership (the landlord). During that time, Respondent leased this
property for Kroger 538 from the landlord. Kroger 538 was one
of several tenants in this retail shopping center and shared with
those cotenants a right of easement to the common parking lot.
Part of the property leased by Respondent for Kroger 538 also
included a sidewalk in front and an enclosed foyer which pro-
vided the entry and exit points for customers.
The part of the lease agreement between Respondent and the
landlord for Kroger 538, relevant to this case, reads as follows:
To the extend not prohibited by applicable laws, the Parking
Areas and Common Facilities shall be subject to a uniform ‘no
solicitation/no loitering’ rule, pursuant to which all soliciting,
loitering, handbilling and picketing for any cause or purpose
whatsoever shall be prohibited within the Parking Areas and
Common Facilities. Either Landlord or Tenant may enforce
said uniform ‘no solicitation/no loitering’ rule, to the extent it
can be done in a lawful manner, by excluding or removing per-
sons engaged in soliciting, loitering, handbilling, or picketing
from the Parking Areas and Common Facilities or by otherwise
lawfully enforcing said rule. Tenant shall have the right, cou-
pled with an interest, and is hereby expressly authorized by
Landlord to enforce in a lawful manner said uniform ‘no solic-
itation/no loitering’ rule within the Parking Areas and Com-
mon Facilities…
(Jt. Exh. 2, p. 3.) There is no dispute in this case that the landlord
vested in Respondent, through the language in this lease agree-
ment, sufficient property interest and authority to enforce the
lease agreement’s “no solicitation/no loitering” rule. (Id.)
Further, the landlord’s representatives sent a three-page letter,
dated March 25, 2014, to Fenton Childers (Childers), Respond-
ent’s real estate manager for its Mid-Atlantic marketing area re-
garding Kroger 538. The landlord expressed concern with “con-
tinuous and smooth operation of the shopping center” and pre-
vention of “disruptive activities or nuisances that have a poten-
tially adverse impact on our tenants and their customers, our
shopping center and the community at large.” (R. Exh. 1.) The
landlord further advised that:
For the above purposes and to facilitate a prompt response to
situations which may arise in connection with any protesting,
demonstrating, picketing, hand billing or related disruptive ac-
tivities on the premises, the undersigned Landlord for the above
referenced location(s) hereby states that, to the maximum ex-
tent permitted by law, no person or organization (whether or
not involving a labor union) shall be permitted to engage in
such activities within the property limits owned by us, includ-
ing that portion on which your store currently operates its busi-
ness under the terms of our Lease, and any such person or or-
ganization shall be dealt with as a trespasser and removed from
the property owned by us and/or leased by your organization.
Landlord further agrees that should any such person or organi-
zation engage in such activities on our property Landlord gives
Kroger Limited Partnership I the authority to have police or
other authorities, to the extent permitted by law, remove the
trespassers from the property referenced.
The letter also authorized Respondent to post signs at appropri-
ate locations on the shopping center premises and otherwise no-
tify “protesters, demonstrators, picketers, hand billers or other
trespassers that no such activity or solicitation is permitted . . . .”
This also included the right to “paint up to a 6 [inch] wide blue
line, on the pavement and grass area just inside the property lines
in and around the entrances and exits for the noted property in
order to assist in keeping protesters, demonstrators, picketers,
hand billers or other trespassers off the property.” (Id.) There is
no evidence, however, showing that Respondent, its supervisors
or agents placed any such signs or blue lines on the Kroger 538
property.
Further, there is no evidence that Respondent maintained any
of its own formal or written no solicitation/no distribution/no loi-
tering or trespassing policy or rule. It did, however, as described
below, on numerous occasions, over an extended period of time,
allow various charitable/nonprofit organizations to set up tables,
solicit for monetary donations, sell goods, and distribute litera-
ture on the side walk on either side of the entrance in front of
Kroger 538. And, on at least two occasions, allowed, through its
supervisors and/or agents at Kroger 538, two of these groups to
solicit and disseminate information and services in the store
parking lot.
B. The Union and Solicitation at the Kroger 538
Union organization and store closings
The Charging Party Union is and has been for all times mate-
rial to this case a labor organization within the meaning of Sec-
tion 2(5) of the Act. Since about March 28, 2010, through the
present, the Union has been the collective-bargaining representa-
tive of all employees, except store management, professional
pharmacy department employees, pharmacy technicians, store
department heads, wine specialists, security employees, demon-
strators and all clerical employees in certain of Respondent’s
stores in the Hampton Roads, Virginia area, including Kroger
538. Respondent and the Union are parties to a collective-bar-
gaining agreement (CBA) that has been in effect from August 3,
2014, through August 4, 2018. (Jt. Exhs. 1–2.)
To better understand the issues in the complaint, it is im-
portant to describe, for background purposes only, the underly-
ing dispute between the Union and Respondent. Respondent
opened two new large Kroger marketplace stores in November
(store 542 in Portsmouth, Virginia) and December (store 554 in
Suffolk, Virginia) of 2014. Shortly thereafter, Respondent began
the process of closing other stores, including Kroger 538. As a
part of the closing process, Respondent, through its Human Re-
source Manager Duran, engaged in meetings with its affected
Kroger 538 employees (also referred to as associates) and their
union representative, Heith Fenner (Fenner), for several weeks
before Kroger 538 closed. Respondent, through Duran, dis-
cussed with and ultimately offered Kroger 538 employees trans-
fer opportunities. One of the main points of contention arising
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
out of those meetings was Respondent’s refusal to offer its af-
fected Kroger 538 employees transfers to the new nonunion
Portsmouth Kroger marketplace store located only a few miles
from Kroger 538, or the other newly opened marketplace store
in nearby Suffolk. Rather, Respondent only offered reassign-
ment to its unionized stores, with “key roles” to be filled in Vir-
ginia Beach stores and the remaining positions in Kroger store
555 in Yorktown, Virginia. In particular, the Yorktown store is
about 25 miles away from the former Kroger 538, and requires a
long bus ride with transfers for those employees without their
own transportation. (Tr. 41–44.)4 Thus, it was the Union’s belief
that Respondent intentionally denied Kroger 538 union employ-
ees such employment in order to avoid unionization at the new
nonunion Kroger marketplace stores. 5
Respondent closed Kroger 538 on about April 11, 2015, and
its union employees who opted to continue working for Re-
spondent transferred to one of the other union stores.
Union petition solicitation at Kroger 538
On April 2, while Duran and Fenner met with Kroger 538 em-
ployees to finalize relocation talks, another nonemployee union
representative and organizer, Brandon Forester, began peace-
fully soliciting customers in the parking lot in front of Kroger
538.6 Forester did so to garner customer support of the Union’s
efforts by asking Kroger 538 customers to sign a petition in pro-
test of Respondent’s decision to transfer Kroger 538 employees
to its stores outside of the Portsmouth area. The petition con-
tained a logo, “#KrogerStrong SOLIDARITY with Virginia
Kroger Workers,” and stated:
As a loyal Kroger customer and member of the Portsmouth
community I am appalled that Kroger is taking good jobs out
of our town and forcing the employees who have helped me at
my store for years move to a store over 25 miles away.
I will not shop at either of the newly opened Marketplace
stores unless the employees at this store are allowed to
transfer there with all the benefits they currently enjoy as
union members.
(GC Exh. 3.) At some point during a break or after his meeting
with Duran ended, Fenner joined Forester in the parking lot.
There is no evidence that Fenner actually assisted Forester in
asking customers to sign the petition, but he did support his ef-
forts.
After being advised that union agents were soliciting in the
parking lot, Kroger 538 manager, Donati High (High), notified

4 Although Duran testified that the new Kroger marketplace stores
were already fully staffed at the time
Kroger 538 was closing, he also made it clear that the Local 400 rep-
resented Kroger 538 employees were only offered transfer positions to
other unionized stores. (Tr. 42.)
5 Apparently, the Union has raised these “double breasting” allega-
tions in another case, which is not before me to consider or decide.
Therefore, as stated, they are only mentioned to show the backdrop
against which the Union in this case sought to petition for public support
of its position that Respondent was wrongfully displacing its union em-
ployees.
6 There is no evidence whatsoever that Forester’s union activity in
Respondent’s parking lot caused any disruption, or that it was anything
but peaceful.
Duran, and in turn Duran called his district manager for guidance
on how to handle the situation. According to Duran, he was told
to get a copy of the above—referenced March 2014 letter from
the landlord, regarding its no-solicitation policy and instructions
for Kroger 538. (Tr. 45–47; R. Exh. 1.) Once they found the
letter, Duran and High went out and confronted Forester, who by
that time had been joined by Fenner. 7 Duran and High showed
them the letter, told them that they were not authorized to solicit
on the premises and told them to leave Respondent’s property.
Duran testified that one of the Union agents (he could not recall
which one) responded “that they would only listen to the blue,”
which he interpreted to mean that they would only leave if told
to do so by the police. (Tr. 28–29.) High recalled that it was
Forester who made this statement, and Fenner did not recall an-
yone making or hearing it. 8 There is no dispute, however, that
Forester refused to stop soliciting in the parking lot, until asked
to do so by the police.
Fenner disagreed with Duran and High that the landlord letter
purportedly shown to him and Forester was the 3-page letter ad-
mitted as Respondent Exhibit 1. Rather, he testified that he and
Forester were quickly shown a 1-page document and denied an
opportunity to copy it. Duran recalled that Forester took a pic-
ture of the letter. (Tr. 48–49, 58–61.) I find it rather unusual and
unbelievable that neither Duran nor High could recall how or
where they found the landlord’s letter, especially since it was the
first time that they had seen or heard of it. It is unnecessary,
however, to resolve this disagreement, as the material facts nec-
essary for me to make a decision in this case remain undisputed.
Duran and High returned to the front or foyer of the store, and
according to Duran, followed further instruction from the district
manager (via telephone), to call the police if Forester continued
to approach people in the parking lot. In the meantime, Forester
continued to approach customers. Neither Duran nor High could
recall which of them actually called and talked to the police. Alt-
hough there was disagreement about who said what and what
was specifically said during the encounter between management
officials and union officials in Respondent’s parking lot, and also
as to whether Duran or High called and spoke to police officers,
there is no dispute that Duran or High called the police and re-
quested to have them stop the Union’s solicitation efforts in the
Kroger 538 parking lot.9 There is also no dispute that when
asked by the police officers, Forester left the premises, and Fen-
ner returned to the store.
Fenner perceived that both Duran and High became irritated
7 Duran testified that this was his first time seeing this letter and be-
lieved that it was on file in the store. High also testified that he first saw
the landlord letter on April 2, but he did not know where or how it was
found. He only knew that Duran helped him find it. (Tr. 154–155.)
8 credit testimony that Forester told Duran and High that he would
not leave unless asked or told to do so by the police. High remembered
Forester saying that he would continue to get signatures until the police
came and would only then leave the property. (Tr. 58–61, 144–145.)
9 Duran testified that he believed that High called the police, and that
“I’m not sure what he told them.” (Tr. 48–49.) High did not know
whether he or Duran called the police, nor what was specifically said to
them. (Tr. 159–160.)
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 29
and angry with him and Forester in the parking lot, and that Du-
ran’s attitude towards him changed from the time they had been
discussing the employee transfers. On the other hand, Duran
claimed that they “very professionally and calmly” approached
them. It would not be surprising that High and Duran became
upset during their encounter with the union representatives in the
parking lot since Forester initially refused to leave, even after
they threatened to call the police. There is no doubt, however,
that Duran and High did not want the Union soliciting at Kroger
538.
C. Respondent’s Practice Regarding Solicitation Requests
from Other Organizations
Although Kroger 538 did not have any formal or written pol-
icies regarding how to handle organizations’ requests to solicit
on Kroger 538’s property, several of its former managers testi-
fied that the unofficial policy or practice was to forward all re-
quests to the store manager to review and either approve or dis-
approve them. They agreed that throughout the years they al-
lowed various charitable organizations to solicit for donations or
to sell items on the sidewalk near the entrance of Kroger 538,
and at times in the parking lot. They did not, however, approve
requests from noncharitable organizations, religious groups or
unions. None of them kept copies of those requests or their de-
cisions to permit or not permit groups to solicit.
In addition, two former Kroger 538 employees observed sev-
eral charitable organizations, as well as others, regularly or on
numerous occasions, asking for donations, selling items or dis-
tributing flyers outside the entrance to Kroger 538 and in its
parking lot. Former Kroger 538 employee, Tonja Edwards (Ed-
wards), testified that during her 7 year tenure at the store (and up
until the store closed in April), she observed several organiza-
tions passing out literature and/or selling goods on the sidewalk
area on either side of Kroger 538’s front doors.10 They included
the Girl Scouts selling cookies for a week or more in the Spring
of every year; the Lion’s Club collecting donations or selling
items on two occasions; the Salvation Army collecting donations
on the weeks between Thanksgiving and Christmas each year;
and a breast cancer awareness group soliciting donations, pass-
ing out literature and selling items on one occasion. She also
recalled a church group (Victory) collecting donations to assist
the homeless and battered women and leaving flyers on cars on
an almost daily basis during the summer time. Edwards admitted
that she did not know whether or not Respondent granted any of
these groups permission to be on the property. (Tr. 77–87, 89–
91.)
Another long time former Kroger 538 employee (for over 16
years prior to the store closing in April), Laverne Wrenn
(Wrenn),11 testified that she witnessed the Girl Scouts selling
cookies annually; the Boy Scouts asking for donations on one
occasion; the Lions Club soliciting donations, and selling items
such as brooms and/or collecting old eyeglasses, on several oc-
casions; a breast cancer awareness group selling trinkets and
baked goods about twice each year; and the Salvation Army

10 Edwards testified that she transferred to the Yorktown store. (Tr.
89.)
11 After Kroger 538 closed in April, Wrenn took a leave of absence
and accepted a position with the Union as one of its business agents.
collecting donations for several weeks during the Thanksgiving
and Christmas holidays. Wrenn also recalled that on one occa-
sion about 4–5 years before, Respondent had permitted the
American Red Cross to run its mobile blood drive in the parking
lot of Kroger 538. She testified that store management even
posted flyers about and encouraged employees to participate in
this event. (Tr. 92–108.) Wrenn also observed college students
selling encyclopedias in the store parking lot on multiple days
over several summers and recalled buying a set for her niece. In
addition, she saw members of the Victory church group solicit-
ing for donations, as well as local dance club promoters placing
flyers on cars in the Kroger 538 parking lot and other of the shop-
ping center’s tenants leaving flyers which advertised their busi-
nesses (a Chinese restaurant and a chiropractor). (Id.) Like Ed-
wards, Wrenn had no idea whether or not Respondent had
granted any of these groups permission to solicit or distribute on
its premises or had prohibited them from doing so.
Respondent sought to challenge Wrenn’s credibility by point-
ing out that she had been a Union steward and now worked di-
rectly for the Union; that she never mentioned the boy scouts or
the American Red Cross in her Board affidavit; and that her af-
fidavit testimony, about how she had communicated customer
complaints about the church group to management, was incon-
sistent with her hearing testimony. At the hearing, it was pointed
out that in Wrenn’s Board affidavit, she stated that “[a]bout a
year ago, a customer named Annemarie mentioned to [her] that
a church group was soliciting in the parking lot and [she] said
[she] had already reported it to management.” (Tr. 114–116.)
At hearing, she testified that she informed High, in 2015, and
another manager in 2014, that customers had complained about
the church group soliciting in the parking lot, but that High just
shrugged his shoulders and the other manager walked off. (Tr.
105–107.) On the other hand, High denied that Wrenn had re-
ported any customer complaints about soliciting. Without re-
hashing the lengthy testimony regarding the discrepancy, I find
that Wrenn’s testimony on this point was confusing and incon-
sistent with her statements during the Board investigation. How-
ever, I also find that her relevant testimony regarding the organ-
izations that came onto Respondent’s property to solicit dona-
tions, sell items, or pass out information is credible, and gener-
ally consistent with Edward’s testimony and that of Respond-
ent’s own management witnesses (see below).
High, who managed Kroger 538 from June 2014 until it
closed, and thereafter became an associate manager of the new
Portsmouth marketplace store, testified that while manager of
Kroger 538, he based his standards for allowing organizations to
solicit on what he had seen at other stores. He described them as
“anything civic like the local fire department, military, veterans,
the Lion’s Club, those were typically the criteria for any just
available dates because you don’t want to over-swarm the cus-
tomers.” High did not recall seeing the Girl Scouts selling cook-
ies, or a breast awareness group, but remembered the Salvation
Army collecting donations, and Respondent’s policy to support
While working for Respondent, she served as the Union’s shop steward
for Kroger store 538, as well as for stores 555 and 532. (Tr. 107–108.)
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and encourage donations to the Salvation Army.12 He also au-
thorized the Lion’s Club asking for donations and the local fire-
fighters collecting donations during their boot drive in the
Kroger 538 parking lot. (Tr. 157–158, 164–165.) At first, he
testified that these authorized groups solicited at the store every
month or two, but when asked on cross examination, he at-
tempted to downplay the amount of times he approved solicita-
tion requests by stating that “[m]y understanding that question
was I got requests about that often. I didn’t always agree to the
request.” (Tr. 159.)
High did not recall club promoters handling out leaflets in the
parking lot or putting them on cars, nor the college students
wearing backpacks and selling encyclopedias. He insisted that
groups not authorized by him were not permitted on the property,
and that prior to April 2, if he became aware of unauthorized
groups approaching customers in the parking lot, he always told
them to leave. He did recall the church group whom he told to
leave the store parking lot on several occasions. He explained
that they would leave once he advised them of the no- solicitation
policy but continuously returned on multiple occasions such that
he had to tell them to leave each time. However, he never called
the police to have them removed or showed them the letter from
the landlord. Nor did he seek advice from Duran or the district
manager about what to do. Interestingly, High could not recall
who told him about customers complaining about the church
group in the parking lot but knew that it was not Wrenn. (Tr.
149–150, 158–159.)
Prior to High, Timothy Lynch (Lynch) was the store manager
at Kroger 538, for about 10 months up until June 2014. Before
then, he was an associate store manager at the store for 3–4 years.
During his tenure as manager, he required organizations to re-
quest permission to solicit on their (the organizations’) letter-
head. Then, he would notify the organization with his decision
to approve or disapprove the request to solicit and/or distribute
on Kroger 538 property. Lynch was not aware of any written or
formal no solicitation/distribution Kroger policy, but imple-
mented his own requirement that the organization be nonprofit.
He believed, however, that “it was Kroger standards not to do
anything that had to do with religious groups or political groups
or anything like that. It was more or less the Boy Scouts, the Girl
Scouts, veterans, disabled veterans’ funds, not much more than
that.” Lynch was somewhat equivocal about what he believed
Respondent’s unofficial policy to be, later stating that it referred
to “. . . anybody going through and soliciting, stopping flow of
traffic, soliciting something that is unwanted or unwarranted as
far as what my customers may have perceived, something that
was promoting an outside business that had no correlation and/or
function to do with Kroger, those kinds of things.” (Tr. 169-–
70, 179.) Lynch specifically recalled seeing the Boy Scouts sell-
ing crafts and asking for donations in front of the store on an
annual basis; the Salvation Army bell ringers on a daily basis, all
day, between Thanksgiving and Christmas each year; college
students selling books during summer break on numerous

12 High could not, however, deny that these charitable groups were
permitted to solicit at Kroger 538. (Tr. 164.)
13 Lynch first testified that he had seen this letter in about March 2014.
Then, he said that he first saw it the day before the hearing, but when
occasions; and veterans groups soliciting in front of the store.
(Tr. 173–177) Like High, he also insisted that during the times
that individuals were on the premises without permission, he
would “immediately go out” and tell them to “cease and desist.”
However, he recalled telling the college students, whom he had
seen a “couple of times,” to leave only once. (Tr. 173.) Lynch
was the only management official who remembered actually see-
ing the March 2014 landlord letter in 2014. He testified that he
believed that it had issued in response to the Union wanting to
solicit at the store.13
Finally, Raymond Helvie (Helvie), former co-manager/assis-
tant manager for Kroger 538 from June/July 2013 until the store
closed in April, testified that he referred solicitation requests
from groups such as the Girl Scouts (who came out multiple
times each year) or Lion’s Club (came out every year) to his
manager, High. He recalled other groups who were permitted to
solicit outside the store on a regular basis, including the Salva-
tion Army. He understood the store policy was to tell unauthor-
ized individuals to leave, and that if they did not, “we’d call the
police and they’d see it from there.” However, I discredit his
testimony that on one occasion, he actually called the police after
an individual asking people for money in the parking lot refused
to leave when he asked him to do so. This was not substantiated
by High and Lynch, who did not recall ever having the police
called prior to April 2, and, Helvie testified on direct examina-
tion that he was never forced to call the police when he told un-
authorized individuals to leave. It is unbelievable that Helvie
would have called the police without his former store managers’
permission, or without them being told about it after the fact.
(Tr. 181–186, 190–191.)
In sum, I find that Respondent regularly, and sometimes for
extended periods each year, allowed other nonemployee organi-
zations to solicit for money outright or by selling goods, and to
distribute information to individuals on its sidewalks on either
side of the entrance to Kroger 538. In addition, Respondent per-
mitted at least two groups to solicit for donations (American Red
Cross mobile blood drive and the local firefighters’ boot drive)
in their parking lot in front of Kroger 538. Respondent did not
want or permit union representatives to solicit on its property.
III. DISCUSSION AND ANALYSIS
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including, but not limited to, the context of the witness’ testi-
mony, the witness’ demeanor, weight of the respective evidence,
established or admitted facts, inherent probabilities and reasona-
ble inferences that may be drawn from the record as a whole.
Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 355 NLRB 621, 633 (2010), enfd. 56 Fed. Appx.
516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, and it is more common than not
in all kinds of judicial decisions to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, supra at 622. Indeed, in this
asked again, admitted that he had seen the landlord’s letter to Respondent
in 2014. (Tr. 175–176.)
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 31
case, I have believed witnesses on some points, but not on others.
If there is any evidence not recited herein that might seem to im-
pact the credited facts previously set forth and set forth below, I
have not ignored such evidence, but considered it and deter-
mined it is not essential in deciding the issues, or I have rejected
or discredited it as not reliable or trustworthy.
As previously discussed, I have credited Wrenn’s testimony
about which groups she observed soliciting on Respondent’s
premises, but not her testimony regarding how High or another
manager at Kroger 538 responded to customer complaints. I do
not credit High’s testimony that he only allowed charitable
groups to solicit sporadically. (Tr. 152.) First, it is inconsistent
with his testimony as to how often these organizations solicited
during his tenure at Kroger 538, and it is unsubstantiated by the
testimony of Lynch, Helvie, Edwards, and Wrenn. Second, his
credibility was further undermined when he backtracked on how
many groups he permitted to solicit each month or two, and in-
dicated that he thought he was asked how many requests he re-
ceived (rather than those he actually approved). Thus, I find that
High intentionally tried to downplay the number of times that he
authorized groups to solicit.
Rather, on multiple occasions throughout each year, many
charitable groups were permitted to solicit and distribute, and as
with the Girl Scouts and the Salvation Army, did so for several
weeks at a time.
B. Respondent Violated the Act by Excluding the Union
from its Property
The General Counsel, relying on Supreme Court and Board
precedent, alleges that Respondent violated the Act by discrimi-
natorily prohibiting union representatives from soliciting for sig-
natures on its petition while allowing other organizations to en-
gage in solicitation activity on its premises. Respondent, on the
other hand, relies on Circuit Court interpretation of Supreme
Court and Board decisions, and argues that it lawfully excluded
the Union’s agents from its property because it did not engage in
prohibited discrimination.
1. The Union engaged in protected activity
Initially, and contrary to Respondent’s argument, I find that
the Union’s activity of soliciting signatures for the petition in sup-
port of its affected member employees was protected under the
Act. It is well established that union representatives have a stat-
utorily protected right to engage in peaceful handbilling. This is
the case when the handbill is a form of communicating consumer
information about a union’s dispute with an employer, consumer
boycotting, or even in the form of secondary handbilling. No
matter which of these forms it might take, it is clearly protected
under Section 7 of the Act. Glendale Associates, Ltd., 335 NLRB
27 (2001), citing Oakland Mall, 316 NLRB 1160, 1163 fn. 14
(1995), enfd. 74 F.3d 292 (D.C. Cir. 1996). Here, Forester, a
nonemployee union representative, solicited potential customers
of Respondent in the shopping center parking lot. There is no
doubt that Forester did so on behalf of the Union, and the em-
ployees it represented, in protest of Respondent’s decision not to

14 This precedent presupposes that the employer must have a property
interest which entitles it to exclude individuals from the property. How-
ever, as previously stated, it is undisputed that the General Counsel
transfer Kroger 538 employees to the new Kroger Marketplace
stores, and to garner support for the Union’s efforts in that re-
gard. Therefore, I find that the Union’s activity in this case con-
stituted protected activity under the Act.
2. Respondent’s discriminatory actions violated the Act
The Supreme Court has long held that an employee may limit
nonemployee distribution of union literature so long as it does
not discriminate against unions by allowing others to do so.
Lechmere, Inc., v. NLRB, 502 U.S. 527 (1992); NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956). Following these decisions,
the Board has consistently concluded that an employer that denies
a union access to solicit and distribute on its property while regu-
larly allowing nonunion organizations to do so unlawfully dis-
criminates against union solicitation. Salmon Run Shopping Cen-
ter, 348 NLRB 658, 662 (2006), enf. denied in relevant part 534
F.3d 108 (2008). See also Big Y Foods, 315 NLRB 1083 (1994);
Victory Markets, 322 NLRB 17 (1996).14
Besides discrimination, the Court in Babcock & Wilcox also
established another exception to an employer’s ability to limit
nonemployee union distribution of literature on its premises: if
the union has no other available reasonable channels of commu-
nication that will enable the union to reach employees with its
message. See Babcock & Wilcox, supra at 112. However, since
that exception has not been raised in this case, the only issue be-
fore me is whether or not Respondent discriminated against the
Union when it excluded it from soliciting and distributing on its
premises while allowing other groups to do so.
I agree with the General Counsel that the controlling case here
is Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied in rel-
evant part 242 F.3d 682 (6th Cir. 2001). In Sandusky Mall, union
representatives engaged in peaceful handbilling at a store en-
trance, asking the public not to patronize the store because of its
use of a nonunion contractor on a construction project. In re-
sponse, mall security guards asked the handbillers to leave on two
occasions and, when they refused to do so, they called the police
and charged the union representatives with trespass. The evi-
dence showed that before and after that incident, mall owners
had authorized solicitation and/handbilling inside the mall by
charitable, civic and other types of groups. Consequently, the
Board determined that the mall owners’ authorization of solici-
tation by those other groups, while selectively excluding the un-
ion agents, constituted sufficient evidence of disparate treatment
and violation of the Act. 329 NLRB at 618–619, 621.
The facts in this case are essentially indistinguishable from
those in Sandusky Mall. The Union’s organizer, Forester, had
been peacefully soliciting potential customers to sign a petition
in protest of Respondent’s refusal to allow affected unit employ-
ees to transfer to Kroger Marketplace stores nearby. When he
refused to cease this protected activity and leave the shopping
center parking lot after Duran and High asked him to do so (and
threatened to call the police), Duran and High called the police,
and had them remove Forester from the premises. Moreover, the
evidence shows that Respondent permitted solicitation on its
property by other groups on a regular, extensive and annual basis
conceded, and the parties agreed, that Respondent possessed such an in-
terest in this case.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
throughout the year, including, but not limited to, the Girl
Scouts, the Salvation Army, Lion’s Club, local firefighters and
Boy Scouts. In doing so, I find, as the Board did in Sandusky
Mall, that Respondent discriminatorily enforced its no-solicita-
tion policy against the Union, and therefore violated the Act.
Respondent’s managers denied that they permitted nonchari-
table groups to solicit in Kroger 538’s parking lot. They testified
that they always told unauthorized groups and individuals to
leave, and that the groups or individuals left without necessitat-
ing a call to the police. High further testified that even though
the groups and individuals left each time he asked them to do so,
one of the local church groups returned on multiple occasions.
However, High admitted that when they returned, he never
showed them the landlord’s no-solicitation/no-loitering letter or
called the police as he did with the union representatives. I find
that Respondent’s unprecedented act of calling the police to re-
move the union representatives, while failing to do so with the
same church group members who ignored him and repeatedly
returned to solicit donations on Kroger 538 premises, also con-
stitutes evidence of discriminatory conduct on Respondent’s
part.
3. Respondent’s defenses fail
Respondent argues that it did not violate the Act because it
“consistently enforced the policy prohibiting solicitation, loiter-
ing, handbilling, and picketing contained in its lease for Store
538” by also denying access to other unauthorized groups. (R.
Br. at 3.) In support of this argument, Respondent points to the
testimony of High and other former Kroger 538 managers that
whenever they were made aware of any impermissible solicita-
tion, they took immediate action to stop it by advising groups
and/or individuals of the policy prohibiting solicitation and loi-
tering and asking them to cease activity and vacate the premises.
This “effective [policing of] unauthorized solicitation at Store
538” argument fails, however. (R. Br. at 16.) According to
Sandusky Mall, supra, it matters not that Respondent may have
taken action, through its various managers, to deny or exclude
other unauthorized groups or individuals, whose messages it
deemed to be undesirable or potentially offensive to customers
(for example, church groups soliciting for donations). 329
NLRB at 622. The Act does not protect such nonunion activity.
Rather, it protects union solicitation and distribution of infor-
mation, when employers, at the same time, permit other charita-
ble, civic, or promotional activities. Therefore, Respondent still
violates the Act under these circumstances, even if it also denies
other unions or groups that it does not want on its premises.
I note here that Respondent not only discriminatorily enforced
the neutral no solicitation policy in its lease, and the not so neu-
tral March 2014 landlord letter, but also in effect adopted, im-
plemented and enforced its own unofficial discriminatory policy
of permitting certain charitable organizations to solicit dona-
tions, sell items, and distribute literature. According to the rele-
vant lease language, the common facilities, including the parking
areas, “shall be subject to a uniform ‘no solicitation/no loitering’
rule, pursuant to which all soliciting, loitering, handbilling and

15 No one disputed Lynch’s testimony that this letter issued in re-
sponse to the Union’s desire to solicit at Kroger 534.
picketing for any cause or purpose whatsoever shall be prohib-
ited.” While the lease provided Respondent with sufficient prop-
erty interest and authorization to uniformly enforce this policy,
the lease forbade all solicitation, loitering, handbilling, distribu-
tion, or any such activity by any groups or individuals, charitable
or otherwise. On the other hand, the tenor of the March 2014
landlord letter, on which Duran and High relied to have Forester
removed, was not so neutral. I find that it clearly targeted unions
and other groups that wanted or tried to protest, demonstrate,
picket, handbill, or otherwise engage in what was considered to
be “related disruptive activities on the premises.”15 Therefore,
Respondent in its reliance on this letter and its own unwritten
practice and policy, discriminated against the Union, and vio-
lated the Act. (Jt. Exh. 2; R. Exh. 1.)
Respondent also argues that it should prevail since the Circuit
Courts of Appeal have adopted a consensus position regarding
“occasional charitable solicitation.” Respondent points to Cir-
cuit Courts that have “repeatedly rejected” Board decisions “in-
terpreting the ‘discrimination’ exception to be implicated by the
act of permitting occasional civic or charitable solicitation activ-
ities.” (citing Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir.
1997); Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir.
2001)). As noted by Respondent, the 4th Circuit in Be-Lo Stores
rejected the Board’s finding that “apparent acquiescence” in so-
licitation by certain religious and charitable groups over the
course of several years prevented the employer from enforcing a
nonsolicitation policy to union organizers. In that case, the 4th
Circuit stated that:
To affirm the Board’s contrary finding on this record would be
tantamount to a holding that if an employer ever allows the dis-
tribution of literature on any of its property, then it must open
its property to paid nonemployee union picketers. We are con-
fident that the Supreme Court never intended such a result.
Be-Lo Stores, 126 F.3d at 285.
Similarly, the 6th Circuit also rejected the Board’s interpreta-
tion of the discriminatory exception in Sandusky Mall Co. v.
N.L.R.B., supra. In doing so, the 6th Circuit relied on one of its
prior decision which interpreted the term “discrimination” as
used in Babcock & Wilcox, supra, to mean “favoring one union
over another, or allowing employer-related information while
barring similar union-related information.” Cleveland Real Es-
tate Partners v. NLRB, 95 F.3d 457, 465 (6th Cir. 1996).
I am mindful of the Courts’ reasoning, in Sandusky Mall Co.
v. NLRB, for rejecting the Board’s determination. See also
Salmon Run Shopping Center v. NLRB, 534 F.3d 108, 116 (2d
Cir. 2008). However, where there is a conflict between court and
Board law, the Board’s duty to apply uniform policies under the
Act, as well as the Act’s venue provisions for review of Board
decisions, preclude the Board from acquiescing in contrary deci-
sions by the courts of appeals. Tim Foley Plumbing Service, Inc.,
337 NLRB 328 fn. 5 (2001). Moreover, I am bound by Board
law which has not been overturned by the Supreme Court. Iowa
Beef Packers, 144 NLRB 615, 616 (1963); Waco, Inc., 273
NLRB 746 fn. 14 (1984). Therefore, the Board’s decision in
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 33
Sandusky Mall and its progeny remains and is applicable here.
Likewise, I am even more mindful that in its Sandusky Mall
decision, the Board fully addressed and the 6th Circuit’s rejec-
tion of the Board’s Babcock & Wilcox interpretation of “discrim-
ination.” The Board did so in its Sandusky Mall discussion of
Cleveland Real Estate Partners, supra. In Cleveland Real Estate
Partners, supra, the Board adopted the administrative law
judge’s finding that the employer discriminatorily prohibited
nonemployee union representatives from distributing handbills
to shoppers in order to discourage them from patronizing a non-
union retailer since the employer had allowed non labor related
handbilling and solicitations by others in the mall. The Board
“respectfully [disagreed] with the Sixth Circuit’s conclusion and
[adhered] to [its] view that an employer that denies a union ac-
cess while regularly allowing nonunion organizations to solicit
and distribute on its property unlawfully discriminates against
union solicitation.” Sandusky Mall, supra at 620.
Respondent admitted that “[a]s part of its community outreach
efforts, Kroger 538 ‘occasionally’ permitted charitable groups
such as the Salvation Army to solicit donations in front of the
store.” (R. Br.) Respondent argues, however, that the instances
when it permitted charitable groups access to solicit were ‘spo-
radic based upon request’ and that the requests, not always
granted, totaled only about one occasion every month or two.
Thus, Respondent also asserts that it meets the narrow exception
set forth by the Board in Hammary Mft. Corp., 265 NLRB 57 fn.
4 (1982). (Tr. 152, 159; R. Br.) In Hammary Mfg. Corp., the
Board acknowledged that “an employer does not violate Sec.
8(a)(1) by permitting a small number of isolated ‘beneficent acts’
as narrow exceptions to a no-solicitation rule. Id., citing Serv-
Air, Inc. v. NLRB, 395 F.2d 557 (10th Cir. 1968), on remand 175
NLRB 801 (1969); Emerson Elecric Co., U.S. Electrical Motors
Division, 187 NLRB 294 (1970). The Board further noted that
“[t]hus, rather than finding an exception for charities to be a per
se violation of the Act, the Board has evaluated the “quantum
of…incidents’ involved to determine whether unlawful discrim-
ination has occurred. Hammary Mfg. Corp., supra, citing Serv-
Air, Inc., 175 NLRB 801 (1969); Saint Vincent’s Hospital, 265
NLRB 38 (1982).
In Albertson’s Inc., 332 NLRB 1132, 1135–1136 (2000), the
respondent excluded union representatives, as well as certain
other groups such as political organizations and unknown chari-
ties, from soliciting and distributing information on the premises
of its grocery stores. At the same time, the respondent permitted
other organizations such as the Salvation Army bell ringers so-
liciting donations for about a month each year between Thanks-
giving and Christmas; Camp Fire Boys; Boys and Girls Clubs;
Boy Scouts; Brownies; various veterans’ groups and other youth
and school organizations to do so immediately outside the en-
trance of its stores. The Board in Albertson’s Inc. relied on
Sandusky Mall, supra at 622 (quoting Reisbeck Markets, 315
NLRB 940, 942 (1994), enf. denied 91 F.3d 132 (4th Cir. 1996)
(unpublished decision)., stating that “such a policy ‘amounts to
little more than an employer permitting on its property solicita-
tion that it likes and forbidding solicitation that it dislikes.’”

16 Albertson’s Inc., 332 NLRB 1132 (2000), enf. denied, Albertson’s
Inc. v. NLRB, 301 F.3d 441 (6th Cir. 2002).
Albertson’s Inc., 332 NLRB 1132, 1135–1136.16 Thus, the
Board refused to expand this narrow exception to hold that an
employer may lawfully restrict union solicitation if it allows only
charitable organizations. (Id at 1136.) Rather, it found that “the
solicitation permitted by the Respondent in the immediate exte-
rior of its store exceeds the small number of isolated beneficent
acts that the Board regards as a narrow exception to an otherwise
valid, nondiscriminatory no-solicitation policy.” Id., citing
Sandusky Mall, supra, slip op. at 4 and fn. 14 (citing Hammary
Mfg. Corp., 265 NLRB 57 fn. 4 (1982).
In Wild Oats Community Markets, 336 NLRB 179 (2001), the
respondent natural foods grocery store attempted to cause the re-
moval of union representatives engaged in both handbilling and
picketing in a parking lot in front of respondent’s market. The
Board majority not only found that such activity was protected,
but also found that “[a]ssuming that proof of discrimination is
necessary for the establishment of a violation in this case, the
nonunion-concerned solicitations that Respondent did permit
were hardly isolated, and they were not all ‘beneficent’.” (Id. at
179, 190.) Similarly, I find that the solicitation and distribution
that Respondent did permit, even if once or twice a month, ex-
ceeded the isolated beneficent acts that the Board allowed in its
narrow exception set forth in Hammary Mft. Corp., supra. In this
case, as shown, when Respondent allowed access to the Girl
Scouts and Salvation Army in particular, they permitted them to
solicit for donations and sell items for weeks at a time each year.
This does not even include the other months throughout the year
that Respondent authorized many other groups to solicit each
month or so.
In further support of its “isolated beneficent acts” argument,
Respondent sought to have me discredit testimony of witnesses
Edwards and Wrenn regarding organizations that it permitted to
solicit and distribute on its premises. Although I discredited
Wrenn’s testimony regarding management’s reaction to cus-
tomer complaints about a religious group asking for donations in
the shopping center parking lot, I credited testimony regarding
the various groups such as the Girl Scouts (several weeks/week-
ends each year) and the Salvation Army (several weeks each year
between Thanksgiving and Christmas), who even according to
Respondent’s witnesses, were permitted to solicit for weeks as a
time on an annual basis. (Tr. 73–91.) In sum, the credible evi-
dence shows that throughout the years prior to April 2 and the
closing of Kroger 538, Respondent has allowed many charitable
organizations to set up displays, distribute literature and solicit
donations on either side of the entrance into the store. And as
previously stated, on at least two occasions, permitted two of
these groups, the American Red Cross (blood donation mobile)
and the local fire department (boot drive), to extend their activi-
ties into the parking lot in front of the store.
There is no distinction before the Board between union activ-
ity and beneficent acts, and clearly Respondent’s acceptance of
charitable and civic solicitation activity from several organiza-
tions, days and sometimes weeks at a time on an annual basis,
goes beyond occasional or isolated instances. In consideration
of Respondent’s activities, and in light of the Board law
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discussed above, I conclude that Respondent has indeed violated
the Act as alleged in the complaint by excluding union solicita-
tion on its premises while at the same time favoring and permit-
ting charitable and civic solicitation activity.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily enforcing a no-solicitation policy by
prohibiting representatives of the Union from soliciting and dis-
tributing petitions and information on Respondent’s premises, by
demanding that they leave, threatening to call the police and by
calling the police to remove them, or in any other way interfering
with them, Respondent violated Section 8(a)(1) of the Act.
4. The above violations are unfair labor practices within the
meaning of the Act, and by engaging in them, Respondent vio-
lated Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Kroger Limited Partnership I Mid-Atlantic,
Portsmouth, Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discriminatorily enforcing a no-solicitation policy by pro-
hibiting and excluding the Union, United Food and Commercial
Workers Union, Local 400, from soliciting or distributing infor-
mation on the premises of its stores.
(b) Discriminatorily threatening to call the police and calling
the police to have representatives of the Union removed from its
premises.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days after service by the Region, post in English
and other languages, as needed, and at its own expense, on its
intranet copies of the attached notice marked “Appendix,”18 if
the Respondent customarily communicates with its employees
by such means. Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by the Re-
spondent’s authorized representative, shall be posted in this man-
ner and maintained for 60 consecutive days from the date it was

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
originally posted. In addition to electronically posting on its in-
tranet or intranet site, the Respondent shall distribute the notices,
at its own expense, electronically by email in English and addi-
tional languages, as needed, to all employees who were em-
ployed at Kroger 538, located in Portsmouth, Virginia, in April
2015 and until the completion of those employees’ work at that
job site. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Re-
spondent at Kroger 538 any time since April 2, 2015.
Dated, Washington, D.C., September 9, 2016.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT enforce no-solicitation policies in a discriminatory
manner by prohibiting or excluding representatives of United Food
and Commercial Workers Union, Local 400 from soliciting sig-
natures, or otherwise engaging in lawful solicitation and distribu-
tion on our premises, or by threatening to call the police or by
calling the police to remove them or in any other way interfering
with them.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
KROGER LIMITED PARTNERSHIP IMID-ATLANTIC
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
KROGER LIMITED PARTNERSHIP I MID-ATLANTIC 35
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-155160 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.