Steptoe & Johnson LLP Takes Lead On New NLRB Law

On May 18, 2007, the National Labor Relations Board issued a decision (Wal-Mart Stores, Inc., 349 NLRB No. 102) litigated at trial and on appeal by Steptoe & Johnson LLP partner, Steve Wheeless, that makes new (and employer-friendly) law regarding union access to parking lots and sidewalks in the leased-property context.  The decision holds that:
 
(1)  Where a property lease grants a tenant the right to use adjoining parking lots and sidewalks "for its business";
 
(2)  The tenant has the "authority to exclude disruptive activity that would interfere with its use of the tract for its stated business purpose";
 
(3)  And "the correlative authority to require prospective solicitors to provide advance notice and a reasonable indication that their activity would not be disruptive." 
 
That means that under this new law, a property tenant can impose time, place, and manner restrictions on all third-parties (like a three-day advance written request requirement and limits on number, duration, and location of third-parties on the property) even if the lessee does not have a sufficient property interest to exclude third-parties as long as it has the lease right to use adjoining sidewalks and parking lots for a business purpose.  

In the case before the Board, the union attempted to leaflet and organize in the parking lot and on the sidewalks immediately outside a retail store in a strip mall.  Store management told the organizers to leave and called the police when the organizers refused to move.  The union filed Unfair Labor Practice charges with the National Labor Relations Board.  The Board held that because the shopping center lease at issue authorized the tenant to use the parking lot and sidewalks "for commercial purposes of the type normally found in retail shopping centers," and granted reciprocal easements for common areas for access, parking, and "the type of facilities installed for the comfort and convenience of customers, invitees, licensees, tenants, and employees of all business and occupants of the buildings" on the property, store management had the right to impose and enforce reasonable time, place, and manner restrictions.  The Board further found that because the union had failed to comply with those restrictions, and because the tenant had uniformly enforced those restrictions, the tenant lawfully excluded the union organizers from the sidewalks and parking lots.

As a result of this important new law, union-free employers that want the right to control union access to exterior property they lease, but do not own or have exclusive use of, should immediately review their leases to determine if the lease includes language similar to that described above, which grants the lessee the right to use the leased property for business purposes.  If so, such employers should draft, implement, and uniformly enforce appropriate time, place, and manner restrictions.  If not, such employers should seek to obtain a minor modification to their leases to provide for business use of adjacent parking lots and sidewalks.  Experienced labor counsel can assist employers in drafting appropriate restrictions or lease modifications.  If you have questions about this new development in union-avoidance law, contact any of the Labor & Employment partners at Steptoe & Johnson LLP (Steve Wheeless, Larry Katz, Mark Kisicki, or Stephanie Quincy) at 602-257-5200 or Steve at swheeless@steptoe.com.