Can Employees Engage in Union Organizing in Mixed-Use Areas Where Work and Non-Work Activity Occurs?

Most companies have designated work areas and break rooms. Work areas are where employees are on-the-clock performing their job duties. Break rooms are where employees are completely free from engaging in any work-related activity. But, what about mixed-use areas, where some employees relax and some engage in work-related activity? For example, one company had a hallway where employees gathered, socialized, watched television, checked personal email on computers, and where various fairs, charity drives, raffles, and the sale of merchandise occurred. But, work-related products also regularly passed through this hallway. When off-duty employees began distributing union literature in the hallway, the company banned that activity claiming the hallway was a work area. The company erred. The hallway was determined to be a mixed-use area since work and non-work related activity took place there. According to NLRB law, companies cannot prohibit the distribution of union literature during non-work time in mixed-use areas. The nuances of whether an area is mixed-use are slight, so check with counsel before stopping or disciplining off-duty employees for engaging in union organizing in areas that are used for both work and rest.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at