Most employer handbooks have a policy addressing solicitations at work. One major purpose of a no solicitation policy is to prevent union organizing on an employer’s premises. Union organizers want easy access to employees and where better to reach them?

A no solicitation policy typically seeks to limit disruptions of production or work should employees wish to approach one another to sell, promote or just give notice about a thing they want their co-worker to buy, support or know about. This policy normally states employees shall not solicit or distribute during work. Some policies might state it is allowed during breaks or on non-work time if necessary. A no solicitation policy typically also prohibits outsiders from entering the property to solicit or distribute materials to employees.

The National Labor Relations Board (NLRB) General Counsel is actively attempting to expand workers’ rights. Under the Biden Administration it is more pro-active than most anytime in the past 50 plus years. Employers and their HR professionals need to understand that the NRLB and its expanding provisions protecting worker concerted activity apply with equal force to non-unionized employers as it does to unionized employers.

Recently it brought charges against Apple saying Apple’s facially neutral policy prohibiting solicitation and distribution in the workplace had the effect of violating workers’ rights to organize – in this case, by the Communications Workers of America (CWA). Apple’s enforcement of its no solicitation policy and also engaging in interrogation of workers suspected of organizing was intended to chill the union’s organizing campaign going on at one of Apple’s stores.

Non-union employers need to understand that when protected activity is being impinged in any way by the employer whether as part of union organizing or without the aid of a union at all, it is protected concerted activity under section 7 of the National Labor Relations Act (NLRA). Section 7 protects “concerted” activity that an employee engages in for the “mutual aid and protection” of other employees. This can apply even when a simple complaint is being made by a worker on behalf of themselves and if applicable to other employees. This is an expansive protection that the NLRB is looking to broaden even further.

Apple is charged with violating section 8 (a) (1) of the NLRA by maintaining and enforcing a no solicitation and distribution policy at one of its stores. The policy in question prohibited solicitation for any business and distribution of any literature, regardless of its content. The policy explained this prohibition included “for your own hobbies or business (such as jewelry, makeup, personal training services), charitable campaigns or political causes – during work time” A standard policy that was intended to prevent all solicitation and distribution, not just union organizing.  Up to now this neutrality has been an important part of a legitimately neutral no solicitation or distribution policy.

In 2021 store employees did begin to organize at Apple’s New York store at the World Trade Center. They put literature in breakrooms, bathrooms, and other “non-working” areas. The company had its managers remove the literature per its no solicitation rule and the managers interrogated employees about whether they had put the literature there. Unfair labor practice charges were brought against Apple based upon this activity violating employee rights under the NLRA.

This case is still pending but it went to hearing with the NLRB’s General Counsel arguing that even general non solicitation and distribution policies are “presumptively unlawful unless the employer can demonstrate the restrictions are necessary to maintain production or discipline.” Under this argument a neutral policy, evenly applied, is still violative of the NLRA whereas previously, a violation would occur at a point where the policy was applied just against a union solicitation. Other types of solicitation or distribution of literature was allowed in some way. The NLRB now will challenge blanket prohibitions of solicitation and distribution rules.

What should employers do now?

Knowing that the NLRB and its General Counsel will pursue cases where solicitation and distribution of union literature in the workplace rules are applied, it is recommended that employers:

Review and evaluate their no solicitation and distribution policies. Nicholas Rubel of Baker Sterchi Cowden & Rice recommends this policy should now be modified to prohibit distribution and solicitation “except for information related to the terms and conditions of employment.” This policy will still have to be applied in a constant manner.

Avoid rules or actions that would chill union activity in non-working areas and during off duty time. This means managers should not be interrupting worker discussions. This will be hard if the discussions going on may be making others uncomfortable and may be the reason for an employee’s complaint to the employer.

His article further advises employers remember and apply the TIPS acronym. Do not Threaten, Interrogate, Promise, or Spy on workers if an organizing campaign is in the works. That said, employers are allowed to communicate on problems and working conditions. Employers that are pro-active about addressing workplace concerns and problems can remove the “organizing oxygen from the room” so to speak.

On Monday of this week the NLRB General Counsel issued a new agenda memo to its field offices requesting certain cases be sent to its Division of Advice. The Division of Advice office evaluates what cases the NLRB can use to change labor law. At the top of this memo’s list is a search for a case to overturn Boeing. The Boeing case was decided during the Trump Administration and takes a middle of the road approach to determining if an employer policy (such as a No Solicitation/Distribution policy) may impinge on employees’ rights under the NLRA. The current NLRB seeks to overturn Boeing and create a more pro-worker standard to review employer policies.

ASE Connect

To strengthen your understanding of the dynamic changes occurring in labor law today, ASE offers two classes for HR and labor professionals, managers and others.

Union Avoidance: Recognizing and Handling Unionization Attempts
April 13, 2023, 1:00 p.m. – 4:30 p.m., virtual

National Labor Relation Act Overview
May 25, 2023 1:00 p.m. – 4:30 p.m., virtual

Sources: With Charge Against Apple, NLRB General Counsel Seeks to Expand Scope of Protected Concerted Activity. Lexology Baker Sterchi Cowden & Rice LLC (3/9/2023).

NLRB GC Refreshes Focus on Precedent-Shift Cases Law 360 Employment Authority (3.20.2023)