NLRB Rules Against Employer’s Ban on Solicitation

New Jersey labor laws protect the rights of workers to organize for the purpose of collectively asserting their workplace rights, such as by forming a union to engage in collective bargaining with their employer’s management. At the federal level, the National Labor Relations Act (NLRA) protects a wide range of activities related to organizing, and prohibits employers from interfering with employees in the exercise of those rights. The National Labor Relations Board (NLRB) is charged with investigating and, in some cases, issuing rulings on alleged violations of the NLRA. An ongoing issue of dispute between employers and employees is the extent to which employers can bar their employees from engaging in organizing activities on the employer’s property. The NLRB recently ruled that an employer’s ban on solicitation on company property was an unfair labor practice under the NLRA. UPMC, 366 NLRB No. 142 (2018).

Section 7 of the NLRA protects workers’ “right to self-organization,” which includes the right “to form, join, or assist labor organizations.” 29 U.S.C. § 157. It is an “unfair labor practice” for employers “to interfere with [or] restrain…employees in the exercise of the rights guaranteed in” Section 7. Id. at § 158(a)(1). Employees may file complaints alleging unfair labor practices with the NLRB.

The NLRB’s website states the agency’s position regarding employees’ solicitation of their fellow employees for union membership: “Working time is for work.” Employers, according to the NLRB, are permitted to “maintain and enforce non-discriminatory rules limiting solicitation and distribution,” but they cannot prohibit such activity “during non-work time, such as before or after work or during break times.” It bases this position on U.S. Supreme Court decisions affirming the right to engage in solicitation outside of work hours. The UPMC case involves businesses providing healthcare services. The Supreme Court has ruled that “health care facilities [must] permit employee solicitation and distribution during nonworking time in nonworking areas,” provided that the employer has not shown that such activities cause “disruption of health care operations or disturbance of patients.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).

The UPMC case consisted of four consolidated cases with similar claims. The complainants alleged that the respondent, on several occasions, “threatened employees with unspecified reprisals if they engaged in union activities.” UPMC at 7. The respondent reportedly maintained a policy that “prohibit[ed] employees from distributing non-work materials in non-work areas.” Id. The complainants had engaged in solicitation-related activities during non-work time in the hospital cafeteria. The respondent allowed its employees to access this area while off-duty.

In January 2018, an administrative law judge (ALJ) ruled in the complainants’ favor, finding that the respondent’s non-solicitation policy was overbroad in violation of the NLRA, and that the respondent violated § 7 of the NLRA by threatening the complainants for engaging in protected activities. The NLRB affirmed this ruling, with minor modifications, in August 2018. It cited Beth Israel in its decision, noting the similarities between the cases.

The Resnick Law Group’s experienced and knowledgeable team of employment attorneys represent workers in New Jersey and New York in claims for various unlawful employment practices. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

New Jersey Continues to Reject “Right to Work” Laws, The New Jersey Employment Law Firm Blog, September 4, 2018

Supreme Court Ruling Affects Collective and Class Employment Actions in New Jersey, The New Jersey Employment Law Firm Blog, July 10, 2018

NLRB Vacates 2017 Ruling on “Joint Employment” that Favored Employers, The New Jersey Employment Law Firm Blog, April 25, 2018


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