By: Kamran Mirrafati, Esq.

Just in time for football season and tailgate parties, the NLRB Division of Advice recently issued a Memorandum effectively limiting parking lot demonstrations outside an employer’s facility.  [See Wal-Mart Stores, Inc., NLRB Div. of Advice, No. 13-CA-99526, August 14, 2013 (released August 23, 2013).]  Here, the employer’s actions were vindicated, but employers generally are cautioned not to read this Memorandum too broadly.

The NLRB has long held that an employer may lawfully prohibit non-employees (i.e., union organizers and other solicitors) from accessing its property. The NLRB also has held that any such prohibition may not extend to prevent off-duty employees from accessing an employer’s parking lots and other outside non-working areas. But, what if a demonstration on the employer’s premises is led by an off-duty employee and includes both employee and non-employee demonstrators?  

The Division of Advice recently answered this question: an employer may lawfully use police officers to remove non-employee demonstrators and their paraphernalia (i.e., a minivan containing a projection system and stadium style speakers) from its parking lot, so long as it allows any employee demonstrators to remain on the premises. According to the Division of Advice Memorandum, such actions do not interfere with employee rights to engage in concerted activities, even if the employee demonstrators were effectively leading the demonstration and were deprived use of property that was instrumental to their demonstration.   

In the case at hand, an off-duty Wal-Mart employee drove to a Wal-Mart store in a minivan owned by a third-party organization whose goal was to educate employees about labor laws. The van had logos of the third-party organization and other graphic images wrapping around the entire vehicle. The off-duty employee parked the vehicle in the parking lot, two rows from the front entrance of the store, and immediately began to lead a group of about 18 non-employee demonstrators with loud music such as the song “We’re Not Gonna Take It” and a projection of protest video clips onto the store’s façade.  After about 15 minutes of this activity, police officers advised all the non-employee demonstrators to leave the parking lot with the minivan, but permitted any off-duty employee demonstrators to remain on the premises. The off-duty employee who was leading the demonstration was not issued any citation by the officers, nor was he ever issued any discipline for his involvement in the demonstration.

The Advice Memorandum stated that Wal-Mart lawfully used the police to enforce its valid Solicitation and Distribution Policy because it reasonably concluded that the demonstration constituted solicitation by an outside organization in violation of its lawful policy. While the action of the police deprived employees the use of the minivan, it was found that Wal-Mart did not unreasonably conclude that the van was owned and operated by the third party organization because the van displayed the logo of the organization. As a result, the Division of Advice recommended that the charge be dismissed, absent withdrawal by the charging party.

Notwithstanding the positive holding of this Memorandum, employers must be cautious when addressing solicitation, distribution, and/or other protected concerted activity on their property. The decision here turned primarily on the fact that Wal-Mart “reasonably concluded that the demonstration constituted solicitation by an outside organization” because it was only able to recognize two of its employees among a larger group of approximately 20 demonstrators. Therefore, it is also reasonable to conclude that the result may have been far different if there had been a larger contingent of employees in the demonstration.