🗞️ A Parking Lot Becomes the Battleground: NLRB Judge Rules Against Kroger's Union Solicitation Policy

An administrative law judge for the National Labor Relations Board ruled on May 8, 2026, that Kroger Fulfillment Network violated federal labor law at its Louisville, Kentucky delivery facility by maintaining and enforcing a parking lot policy that unlawfully restricted employees from engaging in union-related solicitation during their off-duty hours.

The case arose in the fall of 2024, when two customer service delivery drivers, Christopher Minton and Katherine Applegate, began organizing on behalf of General Drivers, Warehousemen & Helpers Local Union No. 89, which had previously sought to organize Kroger-related logistics operations in the Louisville area. HR generalist Chloie Reynolds twice approached Applegate outside the facility's main entrance, on October 10 and October 15, 2024, citing the company's "Parking" policy to curtail her distribution of union flyers to workers arriving and departing the site. Both times, Applegate had already clocked out, and the workers she was speaking with had not yet clocked in.

Judge Andrew S. Gollin, applying decades of established NLRB precedent, concluded that the Parking policy was unlawfully overbroad on two separate grounds. First, its prohibition against solicitation failed to make clear that the ban was limited to working time, creating ambiguity that, under settled labor law, is construed against the employer as the drafter. Second, its categorical bar on off-duty employee access to the parking lot and surrounding premises ran afoul of the Board's longstanding Tri-County Medical Center standard, which permits access restrictions only to interior plant areas and working spaces, not to open parking lots and sidewalks.

Kroger argued its separate "Solicitation and Distribution Statement," which lawfully limits solicitation to working time, was incorporated by reference into the Parking policy. Judge Gollin rejected that reading, finding the language insufficiently clear to put a reasonable employee on notice. He further noted that Reynolds' own conduct undermined the argument: both times she invoked the Parking policy against Applegate, she did so while knowing neither Applegate nor the employees she was speaking with were on the clock.

Kroger also cited congestion, safety concerns, and its shared lease with neighboring tenant Daifuku as business justifications for the off-duty access restriction. The judge dismissed these as speculative, noting the absence of any evidence of accidents, injuries, or complaints from the landlord or co-tenant.

The ruling did not find for the union on every count. Five of the seven active allegations were dismissed, including claims of unlawful interrogation, prohibiting union-related conversation while permitting other non-work discussion, coercive surveillance, and a captive-audience meeting held on November 22, 2024. On the surveillance claims, the judge found Applegate's account not credible, noting that the intersection where she alleged she was being watched was more than 650 feet from the main entrance and obscured by a woodland area. On the captive-audience allegation, which invoked a November 2024 NLRB ruling that tightened the standard for mandatory employer meetings on unionization, the judge found the pre-shift huddle was voluntary, as it occurred during the five-minute grace period before employees were required to be at work.

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.

Key Points

• Kroger Fulfillment Network's Louisville, KY delivery facility employs roughly 150 hourly customer service delivery drivers who stage and deliver online grocery orders.
• The case centered on the company's Employee Handbook "Parking" policy, which prohibited all solicitation in the parking lot and barred off-duty employees from the premises entirely, except to meet with management or retrieve forgotten personal items.
• Judge Gollin found the solicitation ban unlawfully ambiguous because it did not clearly limit the prohibition to working time, and under established NLRB doctrine, such ambiguity is construed against the employer as the drafter.
• The off-duty access ban separately violated the NLRA's Tri-County Medical Center standard, which holds that employers may not restrict employee access to parking lots and other non-working exterior areas without a legitimate, documented business reason.
• Reynolds invoking the Parking policy against a clocked-out employee distributing flyers to workers not yet on the clock was cited as direct evidence of the policy's unlawful application.
• Five of the seven active allegations were dismissed, including surveillance, interrogation, the captive-audience meeting claim, and the allegation that union-related discussion was singled out for prohibition during working time.
• Kroger must revise or rescind the unlawful handbook provisions and post employee rights notices for 60 consecutive days.
• The ruling is consistent with a broader line of NLRB decisions scrutinizing employer handbook policies that extend solicitation and access restrictions beyond working time and interior work areas, a trend reflected in similar recent rulings involving other large employers.

Primary Source

Author: Administrative Law Judge Andrew S. Gollin, NLRB Division of Judges

Source: Kroger Fulfillment Network, JD-28-26 (NLRB Div. of Judges, May 8, 2026)

Link: www.NLRB.gov/case/09-CA-353140

Supplemental References

• NLRB: Section 7 Rights and Employee Organizing
• HR Dive: Off-duty employees and parking lot protections under the NLRA (Aug. 2025)
• WimLaw: Off-Duty Employee Access Rules and the Tri-County Standard
• TruckersReport: Teamsters organize at Kroger Fulfillment Center (May 2024)
• Worklaw Network: 2025 Union Organizing Outlook