No Solicitation Rule
JodiL
7 Posts
We are a non union manufacturing company and would like to keep it that way. We currently have a rule that states any solicitation must be approved by upper management, and only for special occasions, like charitable purposes (employees selling girl scout cookies or items for non profit organization). We don't allow any sort of political agenda, but have allowed vendors to come into our break room and parking lot to sell food to our workers at lunchtime. Should we limit our practices further to avoid having to allow union organizers access?
Comments
The general rule acceptable to the NLRB is that an employer can restrict solicitation during working time in work areas. Work time means time actually at work and excludes breaks, lunch periods, before and after work. Note that for the NLRB "work time" are magic words and are different from "company time." Company time means any part of the day that an employee is at work, including breaks, lunch periods and before and after work when on the company property. For the NLRB prohibiting solicitation during "company time" will be viewed as a violation of the NLRA.
The second aspect of the no solicitation rule is the application. Even if the rule is facially valid, the NLRB will still find a violation if the rule is not uniformally enforced. Thus, the NLRB will view an employer allowing employees to solicite for united way, gifts for other employees, etc, but not for a union to be discriminatory in application.
A third aspect of any such rule involves non-employee organizers. Generally, an employer can prohibit non-employee organizers from soliciting employees on the Employer's property. After several U.S. Supreme Court decisions the NLRB has finally accepted this principle. However, it does not like the law and tries very hard to find ways to avoid the Court's holding. Thus, if an employer allows charitable organizations to solicite on the property, but prohibits union organizers, the NLRB will find a violation.
In addition to these issues, there are also issues of who can use the company's bulliteen boards, e-mail system, and the distribution of literature. There are also issues concerning the timing of the promulgation of these rules.
As you can see, there are a number of issues that an employer must consider before instituting and enforcing no-solicitation/distribution rules. It is always good to consult with your labor attorney on these issues.