Legal Updates

August 2005

Controlling Union Solicitation

Employers who seek to avoid unionization have the power to limit union solicitations in the workplace. Minimizing the opportunity for organizational efforts by professional union organizers and by employees is one of the cornerstones of a good union avoidance strategy. This article will discuss the extent to which solicitations may be prohibited in the work place.

Union Organizers
Union organizers can be professional organizers sent by the union to organize your workforce or they can be individuals who work for your company who attempt to organize from the inside. With good reason, employers typically do not want professional union organizers on their property. If an employer is careful, it can keep these individuals off its premises. Employee union organizers are more difficult to deal with because they obviously have access to the employer’s property. Employee organization efforts in the workplace can be restricted to certain times and places by the employer. A good no-solicitation/no-distribution or literature rule, can make it more difficult for a union to organize and is a must for any organization that is concerned about union organizing efforts.

Solicitation Rules
Non-Employees: If an employer does not have a written policy prohibiting solicitation and distribution of literature, it will be required to also let an outside union organizers onto its property to organize its employees. As a result, it is imperative that employers create and uniformly enforce a valid no-solicitation/no-distribution rule. A validly written no-solicitation/no-distribution policy may prohibit all solicitation and distribution of literature by non-employees on company property. It cannot limit only solicitation/distribution by unions.

Employees: Employees must be permitted to solicit on behalf of a union and distribute literature in non-work areas and on non-work time. An employer may, however, promulgate a policy that prohibits employees from soliciting and distributing literature in work areas and on work time. Work time is not synonymous on-the-clock time. Employees must be permitted to talk about a union on breaks, lunches, cigarette breaks, and personal wash up time, etc. Employees must be permitted to talk about the union on paid breaks and lunches. Beware of e-mail solicitations and postings on bulletin boards by employees – allowing such solicitations could invalidate your solicitation rule.

Uniform Enforcement: Solicitation and distribution rules must be enforced against all entities, not just unions to be valid. If the employer makes exceptions for private business or numerous charities, the rule will be invalidated and the employer could be required to allow union organizers onto their property and allow employees to solicit on work time and in work areas. In cases where the Union has lost an election, the NLRB can give the union a second chance by ordering a new election.

Charities: The NLRB takes the view that “isolated charitable” solicitations are permissible and do not invalidate an otherwise valid no solicitation rule. If too many exceptions are made for charities, however, the rule will be invalidated and the employer will be deemed to have committed an unfair labor practice. Case law is unclear as to how may charitable solicitations are too many. Allowing as little as three charitable solicitations has been held to invalidate an otherwise valid solicitation rule. Although the safest policy is not to allow any charitable solicitations at all, Companies who wish to take advantage of the limited charitable exceptions should seek legal counsel for specific advice relating to their situation.

What if a Union Organizer Applies for a Job
Because employers may generally prohibit non-employee union organizers from soliciting employees on company property, unions often send in an organizer to apply for a job. This is called "salting." The employer cannot refuse to hire salts simply because they are union organizers. If a qualified union organizer applies for a job opening and is not hired, you will likely face unfair labor practice charges and you will likely be order to pay him back pay. The best course of action is to always consider the applicant’s qualifications for the job – if you do this and do not hire the organizers because a better candidate was available, you will be in a position to defend your decision.

Employers who seek to avoid unionization should uniformly enforce a carefully worded no-solicitation and no-distribution policy. Such a policy needs to be in place before a union begins organizing. If an employer implements such a policy in response to an organizational campaign, the employer could be found to have committed an unfair labor practice. Employers seeking to avoid unionization should formulate a plan for minimizing their risk of unionization and should consult legal counsel for advice in formulating such a plan.