Union organizing campaigns are increasing both in number and complexity. Companies going through union organizing drives want to limit the union’s ability to access the company’s property both physically (being in the parking lot, break room, walking the floors) and indirectly (through bulletin boards, having employees pass out flyers to coworkers). Now is a good time to review when companies must allow organizers (either union business agents or pro-union employees) on their property and when organizers are trespassers who can be removed or arrested for refusing to leave.
Company Bulletin Boards
During normal union organizing campaigns, unions are not permitted to post anything on the company bulletin board. Unions are, however, granted access to post pro-union propaganda on company bulletin boards and other places where corporate communication with employees normally occurs as a sanction imposed by the National Labor Relations Board against employers who interfere with their workers’ right to organize.
Literature in the Parking Lot
Companies can prohibit non-employee union organizers from distributing union literature on parking lots and walkways reserved for employees if:
- Unions can communicate with employees through other available avenues; and
- Companies do not discriminate against unions by allowing other non-employees (like Girl Scouts) the ability to distribute their literature.
Only where extraordinary barriers exist making communicating with employees nearly impossible are companies forced to yield their property rights and allow union business agents to recruit union supporters on company property. For example, when the employer’s place of business is very remote and the workers are isolated for long periods of time, like working on an oil rig in the middle of the ocean.
Off Duty Employees
Off-duty employees have greater access rights to company property than non-employee union organizers. Yet, off-duty employees cannot return to work to engage in union solicitation if the company has a rule that:
- Limits access to the interior of the facility and other working areas;
- Is clearly disseminated to all employees; and
- Applies to off-duty employees seeking access to the facility for any purpose and not just to those employees engaging in union activity.
Denying off-duty employees entry to parking lots, gates, and other outside non-working areas is usually prohibited.
The NLRB has recently held that if a company allows off-duty employees the right to remain or return to company property for one reason, they cannot deny off-duty employees the right to remain or return to company property for another reason. For example, grocery stores, gas stations, and restaurants that encourage off-duty workers to frequent company property as paying customers cannot restrict off-duty employees from being on company property for other reasons, such as union organizing. Nor can companies require workers to attend a retirement party after-hours or to return to pick up their paycheck every other Friday but deny off-duty workers the right to engage in union organizing activity.
Access Rights in Collective Bargaining Agreements
For companies with unions, the terms and conditions of union access are usually laid out in the collective bargaining agreement. As always, check your union contract before disciplining an off duty employees from being on company property or calling the police before union business agents are trespassing on company grounds or inside your facilities.
Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.