The short answer is, not entirely. Many employers have a "No-Solicitation" policy. Such policies often include a statement regarding non-employees where such individuals (including outside organizers) are prohibited from the employer's property. Regarding employees, a policy often states that employees are prohibited from soliciting one another during work time (but they have a legal right to solicit during duty-free breaks and meal times). Employees might also be prohibited from distributing literature during work time in work areas.
However, an employer's attempt to enforce these rules during a union campaign can be problematic for a number reasons.
- The rules must pre-date the union organizing effort.
- The rules must be consistently enforced in all situations. If, for example, management allows workers to sell candy, cookies, cosmetics, etc. to one another during work time, then it may be unlawful to enforce the no-solicitation rules during a union campaign.
So what should you do if you encounter solicitation in the workplace? If you are a supervisor, you should immediately report the presence of any outside solicitor to your Human Resource Department. If you observe employee solicitations, discuss this with higher management and HR. If you find pro-union literature posted or left in break rooms or other areas, you should take note of its contents and report it to your HR Department.
What facts can an employer give to an employee? In general, you are permitted to provide information to your employees explaining the advantages of a union-free workplace and the disadvantages or a union workplace. You also can, and should, correct any misinformation being spread by the union.
In conclusion, employers have the legal right to express their views to employees in opposition to union organizing and often choose to do so, for a variety of strong business reasons. With careful planning, employers can effectively respond to organizing activity and help employees make choices that are informed and in their best interests.
We will have more articles on union organizing in the coming weeks.
[Note: This article was written by the law firm, Bond, Schoeneck & King, PLLC, and is part of their "Educational Series" on labor and employment law.]
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