Last week the U.S. Supreme Court (SCOTUS) held that a California regulation that required employers to allow union organizers onto private property was an illegal taking. The California regulation allowed union organizers to enter and stay on private property for up to three hours a day and for up to 120 days per year. Cedar Point Nursery v. Hassid No.20-107 594 U.S ____ (2021). SCOTUS found that this amounted to a government taking of physical property and was illegal under the Fifth and Fourteenth Amendments because it restricted the property owner’s ability to use their own property.

This scenario is a bit different than many cases where union organizers seek to meet face to face with workers about joining a union at an employer’s site. In most cases employers can limit non-employee organizers from entering their property. Employers enjoy the right to refuse access except for certain exclusions such as their presence on easements on a property as long as the union representatives do not obstruct entering and exiting the property over these easements. This power to exclude extends to inspecting employee badges to ensure current employee status if the people are engaging in distributing union information material. It also extends to off-duty contract employees.

Employers run into selected exclusion rules where an employer tries to restrict non-employee organizers that seek to enter an in-store public restaurant in order to solicit off-duty employees. If the union can show the employees that they seek to talk with about organizing are beyond the reach of organizers reasonable efforts to communicate or the employer’s rules discriminate specifically against unions, the National Labor Relations Board (NLRB) will find an illegal unfair labor practice.  The issue where union organizers are refused entry to a public restaurant is not about forbidding just union organizers but whether the employer allows other groups or organizations to come in and solicit for money or memberships. If they allow other groups access to their property for such purposes, they cannot exclude union organizers.

This is an important principle for union-free employers to understand when developing and administering their own No-Solicitation policies.

Employers cannot restrict employees from union membership solicitation during non-work time. Employees have the right to engage in concerted activity (union organizing) during break times and within reason outside of their hours of work. Employers should have a restrictive No-Solicitation policy in their handbooks to clearly state what employees may and may not engage in and when, as shown below:

Solicitation and Distribution 

Solicitation or distribution of material to employees or to anyone else on any Company premises by persons not employed by ABC Company is strictly prohibited without prior approval of Human Development.

Unauthorized solicitation, including distribution or posting of unauthorized materials, by employees during work time and/or in work areas on the Company premises is prohibited.  The policy applies to actual working time, not to break time, lunchtime, or before and after work.

Unauthorized solicitations include but are not limited to: solicitation for political candidates or issues on behalf of/or in opposition to a labor organization, donations or memberships in organizations, circulation of petitions or other literature, and sale of tickets, merchandise, or magazines.  Authorized solicitations generally are limited to United Way campaigns and Company-approved non-profit fund drives.

We are at the start of a new phase of NLRB driven employee handbook rule review. The pro-management Trump era NLRB Board Members will be rolling off their terms on the Board. New Biden Administration appointees will take over with a decidedly pro-labor view. Though No-Solicitation policies have been around for some time, and employers’ rights in this area are somewhat set, expect a more restrictive interpretation of the law surrounding employers’ rights to restrict access and solicitation for organizing. The NLRB moves a lot faster than the court system, and although SCOTUS gave employers a favorable ruling in its case decided last week, that case started as a complaint filed almost six years ago in 2015.

ASE members are advised to keep an eye on the EPTW newsletter for employee handbook policy development around union-free policies.

Additional ASE Resources
ASE Handbook Services – If you need assistance developing a Solicitation and Distribution policy or have a larger employee handbook need, please contact Michael Burns.

Sources: CCH HR Compliance Library. Non-employee organizers: Access to Company Property Analysis and Guidance; Cedar Point Nursery v. Hassid. No 20-107, 594 U.S. ____ (2021)