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Union Solicitation Rights--Bulletin Boards

July 1, 1995

Employers faced with the prospect of union-organizing efforts often ask about the means unions may use to solicit the support of employees, as well as the employer's right to limit those activities. During union organizing campaigns it is common for pro-union employees to attempt to gain support through face-to-face meetings with other employees, bulletin board postings, or distribution of union authorization cards or leaflets announcing union meetings or events. As a general rule, because employees have the right under the National Labor Relations Act (the "Act") to engage in union-related solicitation activity, an employer can prohibit such union solicitation activities only if it has consistently prohibited similar solicitations on behalf of organizations other than unions in the past, i.e., an employer cannot discriminate against employees engaged in union-related solicitation. While the general rule is easily stated, the federal courts and the National Labor Relations Board (the "NLRB") frequently disagree on how this rule should be applied.

A recent decision by the Seventh Circuit Court of Appeals is illustrative. In Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995), the court examined the NLRB's rule of non-discrimination as it relates to employee access to employer supplied bulletin boards. The court set aside an NLRB order finding that an employer had violated the National Labor Relations Act when it allowed workers to post "for sale" notices on a company bulletin board, but prohibited the posting of notices for union meetings. The court's decision was based on the fact that the employer had consistently prohibited the posting of notices of all meetings for all organizations. Therefore, the employer had not acted in a discriminatory fashion by permitting the posting of "for sale" notices while prohibiting the posting of union meeting announcements.

Although the courts and the Board often disagree about the extent to which employers may limit union solicitation activity, certain general principles are relatively clear. The NLRB and courts recognize a limited exception to the non-discrimination rule in cases where an employer has permitted a few isolated instances of charitable solicitation. For example, in Hammary Manufacturing Corp., 265 N.L.R.B. 57 (1982), the NLRB ruled that an employer did not violate the Act by enforcing a no-solicitation rule, with the limited exception of permitting solicitation for the United Way. In contrast, the NLRB recently reaffirmed that an employer will be found to engage in unlawful discrimination when it allows "substantial" civic and charitable solicitation, but not union-related solicitation. Riesbeck Food Markets, Inc., 315 N.L.R.B. No. 134 (1994). In Riesbeck, the employer had permitted solicitation on behalf of several different charities over periods of several months. Another factor supporting the NLRB's decision in Riesbeck was the fact that the employer had implemented a discretionary prior review policy, under which otherwise prohibited solicitation was permitted if approved in advance in the discretion of a designated manager. The NLRB interpreted this procedure as a means of filtering out distribution of union literature.

In short, these cases illustrate that an employer must consistently apply no-solicitation rules. Any exceptions must be extremely limited in number and duration. Further, an employer should avoid instituting a prior review/approval procedure that may be seized upon by the NLRB as evidence that an employer's goal is to screen out union materials.