Rules Regarding Literature and Solicitation of Union

There are steps an employer can take to legally restrict union organizing activity:

Employers can always bar non-employees from soliciting employees during their, work time that is, when the employee is on duty and not on a break. Thus, if the company cafeteria is open to whomsoever is on the premises, union organizers can solicit off duty employees who are in the cafeteria, but not the cafeteria workers (such as cooks) who are not on a break .

Employers can usually stop employees from soliciting other employees for any purpose if one or both employees are on paid-duty time and not on a break.

Most employers (not including retail stores, shopping centers, and certain other employers) can bar non-employees from the building’s interiors and work areas as a right of private property owners. They can also sometimes bar non-employees from exterior private areas such as parking lots if there is business reason (such as safety) and the reason is not just to interfere with union organization.

Whether or not employers must give union representatives permission to organize on employer-owned property and shopping malls is a matter of legal debate. The US Supreme Court ruled in Lechmere, Inc. vs National Labor Relations Board that employers may bar non-employees from their property if the non-employees have reasonable alternative means of communicating their message to the intended audience. However, if the employer lets other organizations like the Salvation Army set up at their workplaces, the NLRB may view discriminating against the union organizers as an unfair labor practice.

Employers can deny on-or off duty employees access to interior or exterior areas only if they can show the rule is required for reasons of production, safety, or discipline.

Such restrictions are valid only if the employer doesn’t discriminate against the union. Or example, if the employer lets employees collect money for wedding, shows, and baby gifts, or sell Avon products or Tupperware or to engage in other solicitation during their working time, it may not be able to lawfully prohibit them from union soliciting during work time. To do so would discriminate based on union activity, which is an unfair labor practice. Here are two examples of specific rules aimed at limiting union organizing (or other) activity:

Solicitation of employees on company property during working time interferes with the efficient operation of our business. Non-employees are not permitted to solicit employees on company property for any purpose. Except in break areas were both employees are on break or off the clock, no employee may solicit another employee during working time for any purpose.

Distribution of literature on company property not only creates a litter problem but also distracts employees from work. Non-employees are not allowed to distribute literature on company property. Except in the performance of his or her job, an employee may not distribute literature unless both the distributor and the recipient are off the clock or on authorized break in a break area or off company premises. Special exceptions to these rules may be made by the company for especially worthwhile causes such as United Way, but written permission must first be obtained and the solicitation will be permitted only during break periods.

Decertification Elections: Ousting the union>

Winning an election and signing an agreement do not necessarily mean that the union is in the company to stay. The same law that grants employees the right to unionize also gives them a way to legally terminate their union’s right to represent them. The process is decertification. There are around 450 to 500 decertification elections each year of which unions usually win around 30%. That’s actually a more favorable rate for management than the rate for the original, representation elections.

Decertification campaigns don’t differ much from certification campaigns. The union organizes membership meetings and house-to-house visits, mails literature into the homes, and uses phone calls, NLRB appeals, and (sometimes) threats, and harassment to win the election. For its part, management uses meetings including one-on-one meetings, small group meetings, and meetings with entire units as well as legal or expert assistance letters improved working conditions, and subtle or not so subtle threats try to influence the votes.