May an employer prohibit a non-employee/union organizer from distributing union materials and soliciting employees on employer-owned property such as the parking lot?

Author: Jed L. Marcus, Bressler, Amery & Ross, P.C.

Section 7 of the National Labor Relations Act gives an employee the right to engage in union or other concerted activities, and the right to refrain from such activities. Sometimes, the National Labor Relations Board (NLRB) is required to balance those section 7 rights with the employer's property rights. Generally, an employer has the right to prevent non-employee organizers from distributing union materials and soliciting employees on employer-owned property, such as a parking lot, unless it can be proven that the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through other channels. Of course, it must also be noted that the employer cannot discriminate against a union organizer and in favor of a non-union individual.

This means that an employer cannot prevent a union organizer to leaflet in the parking lot if, for example, it permits other persons to occupy the parking lot to sell products or distribute leaflets of one type or another. It also means that an employer cannot prevent an employee from soliciting for the union during the workday and on work premises if, during the workday, other employees solicit for outside organizations at the same time. It should be noted, however, that the NLRB has carved out an exception for the solicitation for legitimate charities, such the Girl/Boy Scouts or the American Cancer Society. An employer should develop and distribute to employees a written policy which makes it clear that employees may not solicit or distribute material during the workday and at the workplace. Many employers place this policy in their employee handbook. This policy should be clear and uniformly enforced.