Solicitation And Distribution: Who Can Do What, When And Where?

The potential last year for passage of the Employee Free Choice Act (EFCA) led many employers to ask: What actions should we take to prepare for increased union organizing? While EFCA, in its original form, appears dead for now, that is still a timely question. In fact, unions have elevated their levels of organizing activity as they realize they can no longer wait for new organizing rules.

Thus, this is the fourth article in a series that provides suggestions about how to prepare. In this article, we will review essential concepts about solicitation, distribution and access to private property.

Overview

These concepts are typically addressed in an employer’s “no solicitation/no distribution” policy. Most employers have such a rule in place. If your company does not, it should adopt one now. Even if you are not particularly concerned with union activity, this is really a common-sense workplace rule which says, in essence, working time is for work and non-working time is the appropriate time for non-work related activities. Separate and apart from any union-related issue, that rule promotes safety, efficiency and productivity – all important concepts to the success of any work environment.

In terms of legal compliance, however, the presumed legality of a lawfully drafted no solicitation/no distribution rule can be challenged when the rule is adopted after union activity starts. Even if the policy is drafted and enforced in a legal fashion, the motivation for adopting the rule, after union activity starts, can create a legal problem. Perhaps more importantly, assuming that a lawful rule is in place, consistent regulation of all non-work related solicitation and distribution is critical to the lawful control of union related solicitation/distribution. Having a policy which states the rules and expectations in that regard helps ensure consistent regulation.

As a general proposition, a no solicitation/no distribution rule regulates two types of conduct: solicitation which is an oral call to action and the distribution of literature. Likewise, the rule typically regulates the conduct of employees and non-employees.

Non-Employee Activity

Under federal law, an employer may prohibit completely non-employee union organizers from entering onto the employer’s private property to solicit and distribute as long as two conditions are met. Those conditions are: (1) the union has reasonable access to those employees through other avenues (that condition is met in all but the most extreme factual situations – e.g., the employees work in a logging man camp miles away from civi-lization and consequently the union); and (2) the employer does not dis-criminate by allowing access to other non-employees.

The second condition is more problematic. It means an employer cannot allow non-employee access for other commercial solicitation and then lawfully deny access to the union. For example, if an employer allows Gold’s Gym to sell memberships to employees from a table in the cafeteria, it is likely discriminatory to then deny the union similar access. While the law does allow for a few limited charitable exceptions (granting access for the United Way campaign or the Red Cross blood drive is not evidence of discrimination), other forms of non-employee access should not be allowed.

It should be noted that a few states (e.g., California) have unique rules regarding access to private property. As a result, employers should confirm that their no solicitation/no distribution rules comply with any applicable state law.

Employee Activity

The rules with respect to employees are a bit more complicated. Obviously, employees have a right to enter an employer’s private property when they are scheduled to work since that is where their job is performed. More critically, the law establishes a legal right for employees to engage in union related solicitation and distribution at work subject to the employer’s right to enforce certain time and location restrictions.

Understanding those time and location restrictions requires understanding four terms: “working time,” “non-working time,” “working area” and “non-working area.” As the term suggests, working time is the time when an employee is expected to be performing work tasks and does not include time before or after the shift or any rest, meal or other authorized break period during the shift. Both paid and non-paid breaks are considered non-working time.

Similarly, a working area is a location from which work tasks are being completed – a production line, the retail sales floor or a patient’s room in a hospital. Again, it logically follows that non-working areas generally include all other areas of the work site, but clearly include break rooms, cafeterias, locker rooms, exercise facilities, lobbies and employee parking lots.

Employees have the legal right to engage in union solicitation (either for or against) while at work subject to the employer’s right to prohibit solicitation during the employee’s working time. Stated another way, employees must be allowed to engage in union solicitation at any location on the employer’s property as long as it is done during the non-working time of all employees involved. An exception to this rule exists, however, in industries such as health care and retail sales where solicitation during non-working time can still be prohibited in certain locations.

A policy which prohibits all solicitation while at work is unlawful. Likewise, a policy which bans solicitation during “working hours,” “business hours,” or “company time” instead of “working time” is presumed unlawful. Without a more specific definition, those terms are presumed to include both working and non-working time.

It should be noted that solicitation is a call to action – e.g., sign a card or come to a meeting – and is more than just talk. Several recent decisions issued by the National Labor Relations Board have found rules which prohibit talking about the union during working time to be unlawful and it is clearly discriminatory to allow non-work related talk during working time (e.g., sports, politics or religion) but to prohibit union related talk.

Employees have a similar right to distribute union related literature at work, again subject to the employer’s right to prohibit distribution during working time. Because the distribution of paper involves the potential for litter, however, employers may also prohibit distribution during an em-ployee’s non-working time if the distribution is taking place in a working area. Thus, employers must allow employee distribution of union related literature if it is during the non-working time of the employees involved and being done in a non-working area (e.g., parking lot, cafeteria or break room) but may prohibit that distribution during both working time and non-working times in a working area.

Finally, we want to review an employer’s right to prohibit off-duty employees from returning to work  outside their working hours. Indeed, it is not unusual to find a rule which says, in essence, when your shift is over go home and do not return to work until your next shift starts.

Under the federal labor laws, that rule is lawful only if three conditions are met. First, the rule must be clearly disseminated to all employees (which typically means it must be in writing). Second, the rule must limit access by off-duty employees only to the interior of the facility and to other work areas but generally cannot limit off-duty access to exterior non-working areas. Thus, a rule which denies off-duty employees from returning outside work hours to parking lots, the entrance gates, exterior smoking areas and other similar locations outside the facility, is likely unlawful.

The rule must prohibit off-duty employee access for all purposes and not just for employees who want to return and engage in union activity. That is, the prohibition must be uniformly applied. So, if an employer allows off-duty employees to return to work 30 minutes before shift start to sit in the break room and read the paper, denying similar access to an off-duty employee who wants to sit in the break room and discuss the union is evidence of discrimination.

Policy Enforcement

The biggest challenge to these rules, however, is the need to enforce them in a consistent fashion against all non-work related employee solicitation and distribution. These concepts do not relate just to union activity but must be applied to regulate all non-business related solicitation and distribution.

The classic example is Girl Scout cookies. If you allow employees to sell Girl Scout cookies during working time and in a working area today but stop an employee from distributing a union pamphlet at the same time and location tomorrow because it is “during working time or in a working area” – that is discrimination. That does not mean you have to prohibit Girl Scout cookie sales – that just means you should ask employees to sell their cookies during non-working time and in the break room. Conversely, just because an employer prohibits all form of sales by employees does not mean they may, therefore, prohibit all union related solicitation and distribution.

Conclusion

Below are a few tips to ensure that your company’s policies are compliant with federal and state laws.

• If your company does not have a no solicitation/no distribution rule, implement one.
• If your company has such a rule, confirm that it is drafted in a facially lawful way. The rule should: prohibit all solicitation and distribution by non-employees on the employer’s private property; prohibit employee solicitation only when anyone involved in the solicitation is on working time; prohibit employee distribution during working time but also at any time in a working area.
• Ensure the rule is enforced consistently and in a common-sense manner.
• If you want to restrict access by off-duty employees, make sure the rule allows access to exterior non-work areas and that it can be enforced in a non-discriminatory fashion.

Finally, your Ogletree Deakins attorney can quickly and efficiently help review your compliance with these concepts.

Note: This article was published in the March/April 2010 issue of the Employment Law Authority.