On April 26, 2013, the NLRB issued a ruling which found certain no solicitation – no distribution policies of the retail outlet Target Corporation improper. Per usual, these allegations developed as a result of an organizing campaign at the facility. While a portion of the rule was found lawful, the following provisions were found unlawful by the Board:
Certain activities are prohibited at all times on Target premises. Soliciting, distributing literature, selling merchandise or conducting monetary transactions, whether through face-to-face encounters, telephone, company mail or e-mail, are always off limits (even during meal and break periods) if they are:
- For personal profit
- For commercial purposes
- For a charitable organization that isn’t part of the Target
- Community relations program and isn’t designed to enhance the company’s goodwill and business
Obviously, Target was attempting to carve out certain exceptions pursuant to past NLRB decisions. However, the Board found that the statement “for commercial purposes” was too ambiguous and, therefore, the rule could potentially “chill employees’ statutory rights.” Also note that there was no evidence that the company had been applying the rule, it was simply maintaining the rule.
In the second portion of the opinion, the Board found that a parking lot policy was lawful, overturning an Administrative Law Judge’s finding. The policy stated as follows:
Park in the area of the lot for team members. Always lock your car. Use the “buddy system” or walk in pairs when you leave at night. It’ll make leaving safer. After the store closes, you may be asked to move your car closer to the store for safety. If you see people you don’t know loitering around the team member parking area, notify Assets Protection or your leader on duty immediately. (Target is not responsible if your car is damaged or stolen while in the parking lot.)
The ALJ found the policy unlawful, indicating that it was possible that not all of the workers knew each other and because some employees may want to engage in union activity pre or post-shift in the parking lot, the policy violated the Act because it required the workers to inform the company of anyone who might be potentially engaged in union activities. Surprisingly, the Board disagreed. The panel found that the parking lot policy did not explicitly restrict Section 7 activity as there was no evidence the rule was promulgated in response to union activity, or that it had been applied to restrict the exercise of Section 7 rights.
Finally, the Board provided a practical approach in terms of remedy. Because the policies were contained in the company handbooks and their reproduction would obviously be quite costly if they had to be restated and redistributed, the Board allowed Target to create and distribute inserts, rather than completely reprint and redistribute the entire handbook.