This Management Moxie will focus on the National Labor Relations Board’s (NLRB) recent changes to workplace solicitation rules and the more favorable climate that unions and legislators are creating for organizing workers.

The NLRB Re-Writes Its Solicitation Rules
It is no secret that employers use non-solicitation policies as a lawful means to limit union activities on company time and on company property. However, under longstanding NLRB precedent, a non-solicitation policy was a lawful means to limit union activities only if the policy banned all solicitation. For example, employers would violate the National Labor Relations Act by prohibiting union solicitation while allowing other solicitation, such as the sale of Girl Scout cookies.

To the surprise of many, the NLRB recently rewrote much of its solicitation rules. The question of whether employees have a specific right under the National Labor Relations Act (the Act) to use an employer’s e-mail system for union activity was an issue of first impression. The NLRB issued the Register-Guard Decision on December 16, 2007, providing long anticipated guidance.

Here are the highlights of the Board’s ruling:

• Employees do not have a statutory right to use an employer’s e-mail system for union activity;
• An employer has a basic property right to regulate and restrict employee use of company property (including its electronic communication system);
• The Act does not require the most convenient or the most effective means of conducting communications in the workplace, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for communications related to union activity;
• Although the widespread use of telephone systems has greatly impacted business communications, the NLRB has never found that employees have a general right to use their employer’s telephone system for communications related to union activity;
• Employers may lawfully bar employees’ non-work-related use of its e-mail systems, unless the employer acts in a manner that discriminates against union activity;
• Unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union protected status. For example, an employer would clearly violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by anti-union employees but not by pro-union employees;
• The employer may draw the line between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g. a car for sale) and solicitations for commercial sale of a product (e.g. Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, between business-related use and non-business-related use;
• The fact that the union solicitation would fall on the prohibited side of a policy line does not mean that the rule discriminates under the NLRA. For example, a rule that permitted charitable solicitations but not non-charitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation by a union.

• International Brotherhood of Teamsters (IBT);
• Laborers’ International Union of North America (LIUNA);
• Service Employees International Union (SEIU);
• United Brotherhood of Carpenters and Joiners of America (UBC);
• United Farm Workers of America (UFW);
• United Food and Commercial Workers International Union (UFCW); and
• Unite Here.

• A modified version of the worker free choice act passed in Massachusetts and governs public sector employers;
• Senior politicians in the Commonwealth support and/or have sponsored the state and federal legislation;
• If the proposed legislation becomes law, an employer’s ability to control their own destiny during a union campaign would be crippled. If a simple majority of the workers targeted for organization sign union cards, there would be no opportunity to educate the workers about union representation and no opportunity for the workers to exercise free choice through an election. If a majority signs cards then an employer must negotiate with the new union. No campaign, no election.