An employer may prohibit union representatives from coming on to its property unless:
- The employer lets in other outside groups, such as cell phone companies or political candidates; or
- The employer and the union agree through negotiations, such as collective bargaining, to allow access.
Unions have the right to be in areas on the employer’s premises that are open to the public, so long as they do not disrupt activities there. For example, a hospital could prohibit a union rally in its cafeteria because rallies are not customarily held there.
Employers can prohibit off-duty workers, including those who are participating in union organizing, from being on the premises. In one NLRB case, a hospital prohibited employees from coming to the hospital unless visiting a patient, receiving medical treatment, or conducting hospital-related business. Although this hospital policy was worded lawfully, the NLRB ruled that the hospital applied it unlawfully because the employer allowed off-duty employees to be at the hospital for retirement parties but not to meet with union officials.
The employer can prohibit on-duty workers from encouraging others to join unions or distributing union pamphlets if the policy is applied in a nondiscriminatory manner and the employees are not on breaks. So, employers cannot prohibit employees from soliciting support for a union if it lets the employees ask for political campaign contributions.
Employers must permit on-duty employees who are on break to ask other on-duty workers on break to sign authorization cards, even outside of breakrooms, so long as the employees are not working.
In a significant number of union-organizing campaigns, the management team is not familiar with their own solicitation and distribution policy and the rights of their employees to engage in solicitation and distribution on company property. Training managers on consistent policy enforcement is key. Managers should know where property lines are and whether an employer leases or owns work property. If leased, the ability to exclude outsiders from the property will depend on the terms of the lease agreement and applicable state or local laws.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.