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Nov 4, 2015

Union laws apply to non-union workplaces: Non-solicitation and non-distribution policies even where there is no union


Category: Employment

No union?  Your business still needs to pay attention to the National Labor Relations Act.  The issue getting a lot of attention is facebook messages and what can be done about them when employees slam their bosses or employer’s business but there are other issues too, and those apply to non-unionized workplaces as well as places with unions.

The Supreme Court has long held that the right of employees to communicate with one another regarding self-organization at the job site is protected by Section 7 of the National Labor Relations Act.  Section 7 is the part of the National Labor Relations Act (“NLRA”) that gives employees the right to self-organization.  This part of the NLRA applies to non-unionized workplaces as well as places with unions.  Section 8 is the portion of the NLRA that makes it illegal to interfere with the rights set out in Section 7 and describes what are called “unfair labor practices.”  Prohibiting union solicitation but allowing other types of solicitation would be called an unfair labor practice.

The right to communicate set out in Section 7 encompasses the right to distribute union literature.  The Court has affirmed this right in a variety of settings.  See, e.g., Beth Israel Hosp. v. NLRB, 437 U.S. 483, 507 (1978) (holding that a hospital violates Section 8(a)(1) by preventing an employee from distributing union materials “during nonworking time in nonworking areas, where the facility has not justified the prohibition as necessary to avoid disruption of health-care operations or disturbance of the patients”).  Limits on distribution policies apply to email as well.  An employer may not single out union-related messages for harsher treatment, whether explicitly in its policy or by enforcing a policy only against union communications.  For example, if an employer allows employees to send personal messages using company email, it must allow them to send union-related email messages. Similarly, an employer that allows employees to solicit coworkers on behalf of various organizations may not prohibit messages soliciting on behalf of a union.

Limits imposed with a union in mind will need to be evaluated in terms of all the non-union solicitation and distribution that often takes place in any workplace.  For example, as one court noted, the employer, a hospital, “had permitted use of the cafeteria for other types of solicitation, including fund drives, which, if not to be equated with union solicitation in terms of potential for generating controversy, at least indicates that the hospital regarded the cafeteria as sufficiently commodious to admit solicitation and distribution without disruption.”  Beth Israel Hosp. v. N.L.R.B., 437 U.S. at 502-03.  The Court did acknowledge that union activity was recognized as possibly generating behavior that was “undesirable in the hospital's cafeteria,” but held that there were “less restrictive means of regulating organizational activity” that were more focused on the precise harm to be avoided.  In other words, if the concern is noise, limit noise, but not all union gatherings; if the concern is crowding, limit meetings to less crowded times rather than impose a blanket prohibition.

In another case, the employer allowed a wide variety of solicitations – without discipline – including solicitations at work stations for Girl Scout cookies, ‘beach balm’ suntan lotion, March of Dimes, United Way, Secretary’s Day, and Boss’ Day, and ‘going away’ parties, birthday parties, and other social occasions.  In addition, conversation was not limited to just work but included a wide range of subjects unrelated to work, with no resultant counseling.  In contrast, an employee soliciting on behalf of a union was disciplined for both discussing and soliciting the signing of a union card.  That employer was found in violation of the NLRA.

Guidelines:

  1. Don’t wait and update/revise/review policies until after union activity has already begun.  
  2. Decide what the harms are that the policy is intended to prevent: disruption of customer service?  Customers seeing disturbing information?  Noise?  Crowding? Distraction during working times as opposed to breaks or off duty periods?  Don’t suddenly have a concern about noise, though, for example, just at the same time someone first posts a piece of union literature on a bulletin board.
  3. Draft a policy that is focused on doing just what is necessary to accomplish those goals and address the identified concerns. 
  4. Don’t have a policy that allows unlimited exceptions so long as approved by someone in management. 
  5. Don’t have a policy that forbids union activity, or that is used to discipline an employee for union activity, when other solicitation activity is allowed.
  6. Don’t have an access policy that forbids solicitation and distribution in areas where non-union solicitations and distributions have taken place in the past.
  7. Do have a policy that limits access solely with respect to the interior of the facility and other working areas; “mixed use” areas or areas that have been used for solicitation in non-union activities cannot be limited in terms of the content of the use by employees and discussion allowed.
  8. Do disseminate the policy to all employees, not just the ones engaging in activities associated with unions.
  9. Do have a policy that applies to off-duty employees seeking access to the facility for any purpose (or base the limits on criteria like location and whether interfering with customer service).  You can have exceptions that allow access by employees in their capacity not as employees but as customers/patients/visitors themselves with that access simply requiring that employees in those capacities follow the same rules as any other customer/patient/visitor. 

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Rebecca Webber is an employment attorney; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone).  Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.