Federal Law Protects Your Rights

 

DISTRIBUTION AND SOLICITATION BY EMPLOYEES

 

 DISTRIBUCION Y SOLICITACION HECHA POR EMPLEADOS

 

            WHEN EMPLOYEES 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.”

 

            AN ELABORATE 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 discriminatorily enforced.

 

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.

 

            EMPLOYERS’ 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.

 

 

Taken from:           S. Schlossberg & J. Scott, Organizing and the Law (3^rd. ed., 1983) at pp. 51-54.