The National Labor Relations Act protects employee solicitation of other employees and distribution of literature to form or join a union or to engage in other “concerted” activities. However, employers have the ability to regulate such solicitation and distribution in the workplace under certain circumstances. In general, employers can permissibly have policies that prohibit the following:
While all the foregoing policies are permissible, they can immediately become impermissible if adopted but not rigidly enforced. A solicitation and distribution policy that is inconsistently or discriminatorily enforced, or which allows non-employees to engage in such activities on a selective or discriminatory basis, could give non-employees, such as union organizers, the legal right to claim that they should also be allowed to engage in such activity at the workplace. For example, if an employer allows employees to sell Girl Scout cookies during working time, it is potentially weakening its ability to enforce its solicitation and distribution prohibitions when union or employee concerted activity is involved. Similarly, if an employer allows non-employees to come onto its property to solicit its employees for non-work related causes (except for limited charitable causes), the employer may not legally be able to reject an access request from a union organizer.
An employer that allows non-employees and outside groups to use its facilities (such as an auditorium or cafeteria) should monitor the activities of such non-employee groups so that they are consistent with its solicitation and distribution policy. The mere fact that an employer allows non-employees to use a public space for certain events does not mean that employees or non-employee groups can use the space to solicit support for a union or for other concerted activity. However, an employer that allows a group to conduct a fundraiser for some political or social cause on its property may face a union request for similar access to its property to conduct employee solicitation during a union organizing drive.
In order to avoid unwittingly giving unions an open invitation to their facilities, employers must be mindful of the following takeaways:
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