This Administrative Law Judge (ALJ) decision addressed an unfair labor practice charge filed by General Drivers, Warehousemen & Helpers Local Union No. 89 against Kroger Fulfillment Network. The Union alleged that Kroger violated Section 8(a)(1) of the National Labor Relations Act (the Act) through various actions during an organizing campaign at its Louisville, Kentucky facility.

The ALJ found that Kroger violated Section 8(a)(1) by maintaining an unlawfully broad Parking policy. This policy prohibited employee solicitation in the parking lot and restricted off-duty access to company premises. The ALJ determined that the policy's wording created ambiguity regarding whether solicitation was prohibited during working or non-working time. Crucially, the ALJ found that Kroger failed to demonstrate that the restriction on solicitation during non-working time was necessary to maintain production or discipline. Furthermore, the policy's prohibition on off-duty access was found to be invalid as it broadly barred employees from company premises during non-working hours without a demonstrated business necessity, rejecting Kroger's claims of safety and congestion concerns as speculative.

Additionally, the ALJ found that Kroger violated Section 8(a)(1) on two occasions when its Human Resources Generalist, Chloie Reynolds, prohibited employees from soliciting for the Union on company property during non-working time. Reynolds' interactions with employee Katherine Applegate on October 10 and October 15, where she cited the Parking policy, were deemed to be an unlawful enforcement of the overbroad policy. The ALJ rejected Kroger's argument that Reynolds was merely addressing blocking ingress and egress, finding that her statements and the context indicated an attempt to enforce the broader, unlawful solicitation prohibition.

However, the ALJ dismissed several other allegations. He found no violation for Reynolds prohibiting employees from talking about the Union or interrogating them about union sympathies during a meeting with employee Christopher Minton. The ALJ concluded that Reynolds' statements were aimed at enforcing the company's lawful no-solicitation policy during working time and did not constitute unlawful interrogation or a broad prohibition on discussing the Union. The ALJ also found insufficient evidence to support allegations of unlawful surveillance of employees engaged in union activities by Reynolds and supervisor Will Mosley, deeming the observed behavior to be ordinary or not coercive under the circumstances. Finally, the allegation that Kroger conducted a mandatory captive-audience meeting was dismissed because the ALJ found the meeting occurred before employees were required to be at work, thus not compelling their attendance.

The ALJ recommended that Kroger cease and desist from maintaining the unlawful Parking policy and prohibiting solicitation during non-working time, and take affirmative steps to rescind the offending provisions and notify employees of the changes.

Significant Cases Cited

• Harbor Freight Tools USA, Inc., 373 NLRB No. 2 (2023): This case affirmed that a solicitation rule was overbroad if it failed to clarify that the ban did not extend to employees’ non-working time in non-working areas.
• Tri-County Medical Center, 222 NLRB 1089 (1976): This decision established the criteria for when an employer's policy barring off-duty employee access is valid, requiring limitations to interior working areas and clear dissemination, among other factors.
• Rossmore House, 269 NLRB 1176 (1984): This case established the "totality of the circumstances" test for assessing whether employer questioning of employees constitutes unlawful interrogation.
• Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020): This decision broadened the definition of solicitation to include persuasive conversations during working time aimed at influencing union sentiment, provided the employer has a lawful no-solicitation policy.
• Amazon.com Services LLC, 373 NLRB No. 136 (2024): This case overruled prior precedent and held that an employer violates Section 8(a)(1) by requiring employees to attend meetings where the employer expresses views on unionization, turning on whether attendance is compelled.

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