Walmart Says “We’re Not Gonna Take It” and Board Agrees

Written by Robert G. Brody and Abby M. Warren on November 22, 2013

The National Labor Relations Board (“Board”) issued an Advice Memorandum stating that Walmart was justified in kicking non-employee organizers out of its parking lot under its lawful Solicitation and Distribution Policy.

Regarding the right to access an employer’s property, the Board has generally treated off-duty employees and non-employees differently.  Off-duty employees have more rights to the property because they are not “strangers” and the workplace is a good place for them to engage in protected activity (unionizing).  The Board stated it has “repeatedly held that an employer cannot deny off-duty employees entry to its parking lots, gates and other outside nonworking areas ‘except where justified for business reasons.’”  The Board went on to explain “[o]n the other hand, as a general rule, an employer may exclude non-employee organizers from its property.”

In this case, an employee and his wife went to Walmart on the employee’s day off in a minivan owned by an OUR Walmart organizer (the organization trying to unionize Walmart).  The minivan was decked out in union-related images and equipped with stadium-style speakers and a projection system on the outside.  The employee started to play loud, labor-related music, including “We’re Not Gonna Take It” and then began projecting images of various OUR Walmart activities on the storefront.  The Store Manager confronted the employee.  A few minutes later, the police came to the store.  The Store Manager told the officer that soliciting by non-employees is not allowed outside absent prior approval, which OUR Walmart did not have.  The officer told the demonstrators they had to pack up their things and leave because the parking lot is private property and the business wishes them to leave.  However, the employee was allowed to remain.  The officer told the non-employees they could continue demonstrating on the shoulder of the property, not in the parking lot.  The non-employee demonstrators left and the employee remained outside.

The Board held Walmart was reasonable in its conclusion that the demonstration was a non-employee demonstration, even though one or two employees participated.  The Board also held the employer enforced a lawful policy in asking the non-employee demonstrators to move to the shoulder of the property and allowing the employee to remain on the premises.  The Board did not find it unlawful that the employer deprived the employees of the right to use the van and equipment since it appeared to be owned by non-employees (since it was decorated in OUR Walmart materials).

The key to Walmart’s success was it understood its policy regarding demonstrations by non-employees versus employees, was aware of who was demonstrating and what equipment they were using, and made a reasonable assumption as to who owned the equipment.  Most importantly, Walmart was able to articulate the relevant policies and their rationale to the police.

This memorandum is good news for employers.  It reminds us that no-solicitation and no-distribution policies can be enforced if managers understand them and what steps are needed to enforce them.  Union demonstrations are not a time to be shy; employers must understand their policies now and what facts are crucial to convince the police and Board to enforce their rules.  If you do not understand your own rules, now is the time to learn the answers and teach your team what strategies are most likely to result in enforcement.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Legal Updates, News, NLRB

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More