NLRB Advice Memoranda, Amazon.com Services, LLC (“Amazon 5”), National Labor Relations Board, (May 11, 2022)

This case was submitted for advice as to whether: (1) the Employer unlawfully prohibited nonemployee organizers from soliciting in its private parking lot; and (2) this case presents an appropriate vehicle for the Board to reconsider its decisions in UPMC, 368 NLRB No. 2 (2019) and Kroger Limited Partnership 1 Mid-Atlantic, 368 NLRB No. 64 (2019). We conclude that the Employer's prohibition was lawful under both the current and preceding standards^[i] and, therefore, this case is not appropriate to seek Board reconsideration of UPMC or Kroger.

As an initial matter, we note that this case does not implicate UPMC or the preceding standard because no one engaged in activity at the temporary bus stop alleged to be a public space. See Ameron Automotive Centers, 265 NLRB 511, 512 (1982) (setting out public-space exception); UPMC, 368 NLRB No. 2, slip op. at 4 n.13 (overruling Ameron's public-space exception).

Instead, all activity took place in the Employer's parking lot adjacent to the temporary bus stop. The Employer's lease grants it “the exclusive right to use all parking … areas” (emphasis added), which establishes the Employer's property interest in the parking lot where the nonemployee organizers engaged in solicitation. The Employer sent a letter to the Union instructing their nonemployee agents to cease solicitation activities on the Employer's property, including the parking lot. Accordingly, the appropriate inquiry is whether the Employer discriminatorily denied access to nonemployee union agents while allowing access to other nonemployees for similar activities, both in nature and purpose. Kroger, 368 NLRB No. 64, slip op. at 2.

Here, there is insufficient evidence of disparate treatment to find a violation under Kroger or Sandusky Mall Co., 329 NLRB 618 (1999), which was overruled by Kroger. Under Sandusky, an employer discriminatorily denies nonemployee union organizers access if it otherwise allows substantial civic, charitable, or promotional activities on its property. Sandusky, 329 NLRB at 622. The Union was only able to provide some evidence that in 2019 the Employer allowed food trucks in its parking lots, which is not sufficiently substantial to meet the Sandusky standard, too dissimilar to find a violation under Kroger, and too attenuated to establish actionable discrimination. The remaining categories of evidence are either inappropriate comparators or there is no indication that the Employer knew of the infrequent and inconsistent solicitation by a few third parties. Accordingly, there is insufficient evidence to make out a violation under either Sandusky or Kroger and the Region should dismiss the charge, absent withdrawal.

This email closes these cases in Advice. Feel free to contact us with any questions.

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