Kevin J. Allis, Attorney at Law
In the wake of the San Manuel Indian Bingo & Casino ruling, that for the first time subjects tribally owned an operated enterprises on reservation property to the mandates of the National Labor Relations Act (NLRA), no-solicitation rules have taken on greater significance for tribal employers. Although the NLRA protects the rights of workers to organize in order to address issues regarding wages, hours, and working conditions, it does not totally bar the employer from imposing limits upon the time, place, and manner in which employees solicit for and are solicited by a union.
The impetus behind the implementation of a no-solicitation rule need not only be for union avoidance purposes. No-solicitation rules can have other positive effects, such as improving efficiency and service, if during working time employees are to concentrate and focus on their job, and not be interrupted by various solicitations and distributions. But in either event, it is important for an employer to consistently apply the rule for any purpose, organization, or charity in order for the rule to have any meaning.
Working Time v. Working Hours
Employers must be mindful that the solicitation and distribution restrictions must be narrowly drawn as to not interfere with the employees' right to engage in NLRA protected activities. Employees have special protections that allow them to engage in union solicitation and distribution activities during their “non-working time” in the workplace. Thus, broadly drawn no-solicitation policies that prohibit all solicitations on the “employer's property,” or during “company time” or “working hours,” are presumptively invalid.
The courts and the National Labor Relations Board (Board) have made is clear that the terms “working time” and “working hours” have different meanings, and serve as a benchmark from which such rules may be determined to be either valid or invalid. The term “working hours” is normally understood to designate the period of time from the beginning to the end of a work shift, from the time employees “clock in” until they “clock out.” That period would include lunch and break periods. On the other hand, “working time” is a term referencing the time spent in the actual performance of job duties, and would not include lunch and other break periods.
After a quick analysis of these two differing definitions, it is plain to see that an employer rule barring solicitation during “working hours” would likely be invalid, since it would interfere with protected activities undertaken during lunch breaks and other breaks from work, both considered “non-working” times. Likewise, a ban on solicitation during “working time” would carry the presumption of validity, since it would only apply to times during which employees are performing job duties. Therefore, such employer rules and policies can prohibit solicitations and distributions during the “working time” of either the employee being solicited, or the employee doing the soliciting.
Working Areas v. Non-Working Areas
Employers never lose the right to keep work areas free of distraction in order to maintain production or workforce discipline. Therefore, it is perfectly valid for an employer's no-solicitation policy to prohibit solicitation and distribution in areas where work is being performed. However, a no-solicitation rule is illegal if it applies to “non-working” time in areas where no work is being performed, such as break rooms, cafeterias, and employee parking lots. These areas are considered “non-working areas,” and in nearly every case, employer rules prohibiting pro-union activities in these areas impermissibly interferes with employee protected activity.
Often the employer blurs the distinction between “working areas” and “non-working areas,” thereby endangering the validity of a no-solicitation policy addressing “working areas.” Employers that allow employees to take breaks, while remaining at their workstations, must be careful in restricting protected communications between employees in these areas during such times. Although considered a “working area,” the time is considered “non-working” time. Thus, in this scenario, prohibiting protected activities, such as pro-union communication, during breaks that occur within areas considered “working areas” may be deemed illegal. Also, employers that permit employees to engage in other non-work activities (i.e. “lounging around”) in areas where work is performed, threaten the validity of a no-solicitation policy applicable to “working areas.” Therefore, it is important for the employer to ensure that in areas where work is to be performed, only employees performing such work are to be present, otherwise, a seemingly well drafted no-solicitation policy that addresses “working areas” could be rendered meaningless.
It is important to note that a distinction exists between solicitation and distribution. An employer rule that bars the distribution of literature, as opposed to oral solicitation, in “working areas,” even though during “non-working time,” is usually found to be legal. The distribution of leaflets in “working areas” during lunch and break periods can reasonably be thought to create a littering hazard. As such, an employer can prohibit not only the distribution of literature, hats, buttons, and shirts, not only during the “working time” of either the employee to whom the literature is being distributed, or the employee doing the distributing, but also at all times in “working areas.”
Non-Employees and Off-Duty Employees
Employers may ban “non-employee” union organizers from solicitation and distribution at the workplace, so long as the employer generally prohibits other “non-employee” solicitations. “Non-employees” can be denied access to the employer's property, and the employer can validly post its property against non-employee distribution of union literature if reasonable efforts by the union, through other channels of communication, will enable it to reach the employees with its message. Therefore, union supporters are free to solicit employees on the public property that may exist across the street from the employer, but are not free to do so on the employer's private property.
As for “off-duty employees,” a no-solicitation rule applicable to these individuals is valid if it is clearly disseminated to all employees and only limits access to the interior of the employer's workplace or other “working areas.” Equally important is the fact that it must apply to “off-duty employees” seeking access to the workplace for any purpose, and not just to those employees engaging in union activity. This means that any rule that denies “off-duty employee” access to the employee parking lots, gates, and other outside “non-working areas” is illegal.
This same reasoning can be applied to “off-duty employees” who work for the employer, but at another site or facility. An employer can limit access to the interior of the workplace, but may not prohibit protected activities in non-working areas outside the workplace. Offsite and onsite employees share the same common concerns as to a specific employer. Therefore, offsite employers are not considered “strangers,” and must be given the same liberties as onsite “off-duty employees.”
Display of Union Button, Pins, and Messages
Both the courts and the Board have affirmatively ruled that the wearing of union pins, buttons, and messages are forms of protected activity. However, such displays are not absolute. If the employer can show that the pins, buttons, and/or messages will have a negative impact on production, create significant employee dissension, create distractions from work, or hinder the ability of the employer to maintain employee safety and discipline, a rule prohibiting such activities will be deemed valid. However, as is the case with other solicitation and distribution restrictions, if it is discovered that a ban on only union pins or buttons exists, but not for other similar items, a no-solicitation policy addressing such activities is worthless.
Strict and Consistent Enforcement of the Rule is Paramount
The employer's past practice of allowing or disallowing employee solicitation and distribution of material is key in determining what access an employer must give to a union. Once a no-solicitation policy is in place, the employer must vigorously and consistently enforce the policy. Most litigation concerning no-solicitation rules arises out of claims of discriminatory enforcement. Although sometimes painful, employers must be willing to enforce it! This means that if an employer wishes to restrict union access to the workplace, it must be willing to prohibit employees from handing out fliers for charity events, fundraisers, and tupperware parties. Inconsistent enforcement will always negate an employer's claim that it legitimately needs a no-solicitation rule to keep the workplace free from distraction in order to maintain production and workforce discipline.
In conclusion, employers need to draft and implement unambiguous no-solicitation and distribution polices that are consistently enforced. An employer may not ban union literature and postings from its premises if in the past employees have been allowed to solicit and distribute personal items.
Kevin J. Allis is a tribal member of the Forest County Potawatomi Community. He is an attorney that practices labor and employment law on the management side. He can be reached at (410) 576-0675 or firstname.lastname@example.org.