NLRB overturns prior rulings, strengthens private property interests

In recent weeks the National Labor Relations Board (NLRB) ruled in favor of private property and business interests in two different matters that have potential implications for retail real estate.  

The Board, in Bexar County Performing Arts Center Foundation, overturned precedent and held that employers not involved in an underlying labor dispute may bar non-employees from leafletting on their premises even if the demonstrating workers work for an on-site contractor. In prior cases, including Simon DeBartolo Group, the Board had held that off-duty employees of a contractor enjoyed essentially the same rights as employees of the property owner. The August decision reversed this standard, with the Board majority in Bexar County holding that “contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees.” Critics of the new ruling say this decision goes along with efforts to narrowly define a “joint employer.” 

In early September the NLRB held that in Kroger Mid-Atlantic that Kroger managers in Virginia did not violate labor law when they got police to order union representatives to leave a shared shopping center parking lot. This NLRB ruling overturns the 1999 Sandusky Mall decision, where the Board stated that a mall owner’s policy of permitting some solicitations, but not the union’s, amounted to prohibited discrimination under the National Labor Relations Act. In the Sandusky Mall majority’s view, the distinction was based on nothing more than the likes and dislikes of the retailer or property owner. This latest action allows an employer to bar non-employee access for a protest on company property yet allows the employer to granting other charitable, civic groups or members of the public access. 

ICSC supports the Board’s effort to strengthen private property interests. For more information please contact Betsy Laird at blaird@icsc.com.