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NLRB to Consider Scope of Permissible Solicitation On Employer Premises

By Victor Kisch on January 24, 2011
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The National Labor Relations Board (NLRB) is on its way to making some significant changes, which favor organized labor.  One change that may be coming relates to non-solicitation rules.  These rules determine when a union organizer can come on a company’s property and solicit employees to join a union.  For the time being, a company can prohibit a union organizer from coming on its property so long as it’s not discriminating by allowing other third parties on its property to solicit employees. 

There are exceptions; for example, an employer can allow third parties on its property if it’s intended as a benefit for employees, such as a yoga or fitness company holding meetings on site to describe group rates.  An employer is also allowed to bring charities such as United Way on site to solicit employees.  If an employer allows only these types of solicitations, it is not considered discriminatory to prohibit union organizers from the premises.  The blurry line relates to the situation when employees solicit for third parties that are good causes but not charities, such as the girl scouts or fundraisers for public schools. 

A pending NLRB case called Roundy’s involved distribution of handbills on company property in front of its retail stores (sidewalks and parking lots).  The handbills asked consumers not to shop at Roundy’s claiming unfair wages.  The Union contends that Roundy’s allowed several outside third parties on its property – bloodmobiles, Salvation Army, Veteran of Foreign Wars, Shriners and others – and that union agents should be allowed the same access.  

The NLRB took the unusual step of requesting amicus briefs from interested parties before it makes a decision.  This often signals a major policy shift.  Given the labor-friendly composition of the NLRB, it’s likely to give greater rights for union organizers to enter onto a company’s property, such as parking lots, sidewalks and possibly inside the facility itself – in a non-work area.  If this becomes law, it’ll be much easier for an organizer to solicit an employee on company property. 

One step employers can take now is to review and update their non-solicitation policy and ensure that’s it’s being applied in a consistent manner.  That is, ensure that you’re not allowing third parties on your property to solicit your employees – or you may be opening your door to a union organizer. 

Photo of Victor Kisch Victor Kisch

Victor Kisch is a partner of Stoel Rives LLP and chair of the Labor and Employment group, which includes approximately 40 attorneys in six states (Oregon, Washington, Idaho, Utah, California and Alaska). Victor represents management and employers only, and he has specialized exclusively…

Victor Kisch is a partner of Stoel Rives LLP and chair of the Labor and Employment group, which includes approximately 40 attorneys in six states (Oregon, Washington, Idaho, Utah, California and Alaska). Victor represents management and employers only, and he has specialized exclusively in labor and employment law for 23 years. He has handled over 75 trials, including trials before juries, judges, arbitrators, administrative judges and hearing officers. His practice focuses on wage and hour class actions and defending claims of discrimination, harassment, and wrongful discharge. He also maintains an active practice in the area of trade secrets and in traditional labor law matters. Victor is one of five Oregon employment attorneys elected as a Fellow in the College of Labor and Employment Lawyers; in 2008-2009, he is ranked in the first tier of Oregon Labor and Employment attorneys by Chambers USA (2009) and for several years, he has been listed in Best Lawyers in America and “AV” rated by Martindale-Hubbell. Victor is admitted to practice in Oregon, Washington and California.

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  • Posted in:
    Employment & Labor
  • Blog:
    World of Employment
  • Organization:
    Stoel Rives LLP
  • Article: View Original Source

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