What's Good For The Goose . . . Enforcement Of No-Solicitation Policies

Union membership has been on the decline for quite some time. As membership declines, so does the amount of dues unions can collect. Accordingly, unions are becoming more aggressive in their attempts to organize non-union employees.

The primary method by which union organizers attempt to convince non-union employees they should join a union is direct solicitation. This can be accomplished both inside the workplace and outside the workplace. Inside the workplace, the solicitation can be initiated by employees who support a union, by organizers who are, knowingly or unknowingly, hired by the employer (a tactic known as "salting"), or, in certain circumstances, by outside union organizers who are allowed on the employer's premises. Outside the workplace, union organizers generally gather just off the employer's property and attempt to solicit employees as they are coming from and going to work. This article will focus on solicitation that occurs within the workplace.

One of the best weapons an employer can have to limit on-the-job solicitation is to promulgate and enforce a strict no-solicitation, no-distribution policy. The legal parameters of such a policy are as follows:

  • First, the employer can prohibit solicitation during the working time of either the employee being solicited or the employee doing the soliciting.
  • Second, the employer can prohibit the distribution of literature, hats, buttons, shirts, etc. not only during the working time of either the employee to whom the literature, etc. is being distributed or the employee doing the distributing, but also at all times in all working areas.
  • Third, the employer has the right to prohibit non-employees from soliciting at any time on the employer's property.

The obvious corollaries to the foregoing rules are that solicitation is permissible during the non-working time of all employees involved, and both solicitation and distribution are permissible during non-working time in non-working areas, e.g., break rooms, smoking areas, etc. Similarly, non-employees are permitted to solicit employees off of the employer's property. If, however, these organizers are unruly, are blocking ingress and egress to the employer's property, or are creating other safety hazards, steps can be taken to limit their activities. Before engaging in self-help, however, you should contact your lawyer.

Once you have your no-solicitation, no-distribution policy in place, it must be vigorously and, most importantly, consistently enforced. As evidenced in two recent Tenth Circuit cases, lax or inconsistent enforcement of no-solicitation policies can render them meaningless. In Four B Corp. v. NLRB, a grocery store with a fairly broad no-solicitation policy allowed extensive solicitation on its property (on the sidewalks in front of the store) by a number of charitable and community organizations, but when a union showed up to try to organize its employees, the grocery store, relying on its no-solicitation policy, required them to leave. The court held that because the store had allowed so many exceptions to its policy, its application of the policy to the union organizers was discriminatory and the organizers should have been allowed to engage in their solicitation of employees. [Note: There is a very limited "beneficent acts" exception in cases like this which will permit employers to allow limited solicitation by charitable organizations without risking being found guilty of discriminatory application of a no-solicitation policy. In Four B Corp., however, the court found the solicitation activities by the various charitable and community organizations were too extensive and frequent to fall within this exception.]

Similarly, in Albertson's, Inc. v. NLRB, the Tenth Circuit found that the employer unlawfully permitted employees to solicit support for a decertification petition while prohibiting employees from soliciting support for the union. This inconsistent enforcement of the employer's no-solicitation policy was discriminatory in nature, and thus eliminated the effectiveness of the policy.

In summary, if you want to have an effective no-solicitation, no-distribution policy, you must be willing to enforce it. If you want to be able to stop employees from wandering around the shop floor handing out fliers for a union meeting, you must also be willing to prohibit them from handing out fliers for a Tupperware party. For some employers, this creates an employee morale dilemma, and you should give this some thought before simply enacting and enforcing a policy.

If you choose to enact a no-solicitation, no-distribution policy, we recommend that it be in writing, be posted, and, if possible, that employees sign off on the policy.

*article courtesy of Smith, Currie & Hancock LLP.