Impairment of the employer's property due to strike action must be accepted by the employer in exceptional cases, press release 62/18, on BAG, judgment of 20.11.2018 - 1 AZR 189/17

The employer operates a shipping and logistics center in an industrial park. The site includes a company parking lot, most of which is intended for employees' cars. In September 2015, the employer went on strike. On the days of the strike, the union set up bar tables and garbage cans in the parking lot in front of the main entrance and positioned striking employees and union representatives there. This did not result in any physical obstruction of access.

The employer sued for injunctive relief against such actions in the future. The labor court ruled in favor of the defendant. The plaintiff's appeal was dismissed by the Regional Labor Court.

The BAG confirmed the judgment of the LAG in full and dismissed the employer's appeal. According to the BAG, the right to strike also includes the right of a union leading a strike to approach the employees called to stop work immediately before entering the company in order to persuade them to take part in the strike. Such an action can also take place in the employer's company parking lot. Whether this is permissible is determined by weighing up the fundamental rights of the parties involved. In the specific case, this weighing up went in favor of the striking trade union: The BAG came to the conclusion that, due to the local conditions, communication between the union and the employees could only be carried out in the company parking lot. This interest of the trade union is protected by fundamental rights. For this reason, the employer must accept a short-term impairment of its property.

Conclusion: In conclusion, the BAG's decision is convincing. It is already clear from the press release that this is an individual case decision with an exceptional character. Trade unions are not generally entitled to set up pickets on company premises. It is also generally unreasonable to expect the employer to use its operating resources for the strike. Only if a consideration of the fundamental rights interests of both the trade union and the employer comes to a different conclusion can the employer be forced to tolerate strike action on its company premises.