Federal Law Protects Your Rights
DISTRIBUTION AND SOLICITATION BY EMPLOYEES
DISTRIBUCION Y SOLICITACION HECHA POR EMPLEADOS
OF A PARTICULAR EMPLOYER ARE ASSISTING UNIONS TO ORGANIZE, THEY ARE MUCH BETTER
PROTECTED THAN PROFESSIONAL ORGANIZERS. THE SUPREME COURT HAS SAID: “NO
RESTRICTIONS MAY BE PLACED ON THE EMPLOYEES’ RIGHT TO DISCUSS SELF-ORGANIZATION
AMONG THEMSELVES, UNLESS THE EMPLOYER CAN DEMONSTRATE THAT SUCH A RESTRICTION IS
NECESSARY TO MAINTAIN PRODUCTION OR DISCIPLINE.”
SET OF GENERAL RULES HAS BEEN WORKED OUT BY THE LABOR BOARD ON THE
SUBJECT OF EMPLOYEE DISTRIBUTION AND SOLICITATION. WE EMPHASIZE GENERAL
RULES BECAUSE THESE RULES APPLY ONLY WHERE THERE IS NO DISCRIMINATION,
FAVORITISM, OR OTHER SPECIAL CIRCUMSTANCES. AS IN THE USUAL CASE, THE FACTS
BECOME MOST IMPORTANT.
THE GENERAL RULES GOVERNING EMPLOYEE
DISTRIBUTION AND SOLICITATION:
1. A company rule that prohibits employees from
soliciting union members after working hours or distributing union
literature in non-work areas on the employees’ own time is “interference”
with employee rights and violates Section 8(a)(1) of the Act (National Labor
Relations Act), in the absence of special circumstances making the rule
necessary to maintain discipline or production.
2. A company rule prohibiting the distribution of
union literature in working areas , even on free time, is presumed valid
by the Board and does not violate Section 8(a)(1), unless, of course, it is
3. An employer can ban both distribution and
solicitation anywhere in the plant on working time. However, the employer
must make it clear that “working time” does not include break periods,
mealtimes, or other specified nonwork periods.
4. An employer may not ban union solicitation, even in
work areas, during the employees’ free time.
5. The handing out, with or without conversation, of
authorization or membership cards is solicitation, not distribution, and
cannot be prohibited anywhere in the plant during nonworking time, in the
absence of unusual circumstances.
6. Mere talking about the union, absent solicitation
of cards, cannot be banned.
7. A company rule which is vague or ambiguous, so that
the average employee might have a difficult time knowing when or where he or she
is allowed to engage in solicitation and distribution, is invalid even if it is
susceptible of a valid interpretation.
8. A valid company rule limiting distribution and
solicitation may not be discriminatorily enforced - for example, enforced
against employees favoring the union and not against those opposing the union.
9. Workers entering or returning to the plant area
during their nonworking time are governed by the rules for employees and not
those for outside organizers. Generally, off-duty employees must be allowed
access to “outside non-working areas” such as parking lots and entrance gates.
While the employer can ban off-duty employees from the interior of the worksite,
the no-access rule must be clearly disseminated to all employees and must apply
to access for any purpose.
10. An employer cannot require that an employee request
supervisory permission before soliciting cards or distributing literature in
nonwork areas during the employees’s free time.
11. The suspicious timing of an employer’s new rule may
be enough to invalidate it. The sudden enforcement of a dormant rule which has
been on the books but never used may also be unlawful if it comes on the heels
of an organizing campaign.
UNLAWFUL BARS AGAINST PROPER DISTRIBUTION AND SOLICITATION BY EMPLOYEES NOT ONLY
AMOUNT TO UNFAIR LABOR PRACTICES; THEY ARE GOOD GROUNDS FOR SETTING ASIDE A
REPRESENTATION ELECTION IF THE UNION LOSES.
from: S. Schlossberg & J. Scott, Organizing and the Law (3rd.
ed., 1983) at pp. 51-54.