A recent case from the National Labor Relations Board (“NLRB”) demonstrates how careful employers must be when it comes to the places where they restrict concerted activity.

On May 8th of this year, an NLRB administrative law judge ruled in Kroger Fulfillment Network (09-CA-353140 and 09-CA-355697; JD-28-26) that a Kroger distribution facility in Kentucky had violated federal labor laws by prohibiting employees from using a company parking lot to solicit support for union representation during nonworking time. Additionally, the judge found that Kroger’s parking policy unlawfully restricted off-duty employee access and that an HR employee, by her statements and conduct, prohibited one employee from soliciting on company property during nonworking time.

How Kroger’s Parking Policy Sparked the Union Organizing Dispute

This case arose in 2024, when two customer service delivery drivers began a union campaign on behalf of General Drivers, Warehousemen & Helpers Local Union No. 89, which had previously sought to organize Kroger-related logistics operations in the Louisville, Kentucky area.

During this time, one of the customer service delivery drivers was approached twice by an HR Generalist for the company while the employee was handing out union flyers outside of the facility’s main entrance. During both interactions, the HR Generalist advised the employee that the company’s Parking policy prohibited the employee from distributing union fliers to workers arriving and departing from the facility. At both times when this interaction occurred, the employee handing out the fliers had already clocked out, and the employee to whom the fliers were being distributed had not yet clocked in for work.

Why Kroger’s Off-Duty Access and Union Solicitation Arguments Failed

The National Labor Relations Act (“NLRA”) generally protects employees who solicit support for a union during nonworking time and distribute union materials in nonworking areas during nonworking time. Employer restrictions may be lawful in limited circumstances, but they must be supported by legitimate business reasons and applied consistently.

Kroger posed numerous arguments as to why their policy and the behavior of the HR Generalist did not constitute an unfair labor practice under the NLRA.

The first argument posed was that the company’s Solicitation and Distribution policy, which lawfully limited solicitation to working time, was incorporated by reference into the company’s Parking policy. The judge rejected the argument and found the language insufficiently clear to put a reasonable employee on notice of the restriction or the right of employees to engage in protected activity during nonworking time.

The judge also concluded that the HR Generalist’s conduct undermined Kroger’s interpretation of its policies. Both times the HR Generalist interacted with the employee, she invoked the Parking policy despite knowing that the employee distributing the flyers and the employees receiving the fliers were not on the clock. Her response therefore suggested that the company was enforcing a broader restriction than the lawful working-time limitation Kroger cited in its defense.

Other arguments raised by Kroger included congestion, safety concerns, and its shared lease with neighboring tenant, as business justifications for the off-duty access restriction. The judge dismissed those justifications as speculative, noting the absence of any evidence of accidents, injuries, or complaints from the landlord or co-tenant.

The Required Remedies: Policy Changes and Employee Notice

As a result of the ruling, Kroger was ordered to rescind the offending provisions of its Parking policy, distribute revised handbook materials to employees, and post an official notice of employees’ rights for 60 consecutive days.

These remedies illustrate that even when a case does not result in substantial monetary liability, an unlawful policy can still require organization-wide changes, employee communications, and ongoing compliance efforts.

Key Takeaways for Employers

Although the consequences for Kroger did not include major financial repercussions, employers should not underestimate the legal and operational risks of restricting protected concerted activity. Federal law protects the right of employees, including nonunion workers, to act together regarding workplace conditions and to seek assistance from a union. An overly broad policy or an inconsistent response by a manager or HR representative can therefore create liability even before a union is formally recognized.

Employers should review solicitation, distribution, parking, and off-duty access policies to ensure that they use consistent language and do not prohibit protected activity. Managers and supervisors should also be trained to recognize protected union activity. Finally, employers should always consult legal counsel before responding to an organizing campaign.

By: Cara Sheehan, Esq.

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