If you have a non-solicitation policy in place and enforce it, the NLRB will generally uphold your ability to prevent unions from being on your property to solicit support from employees. If you don’t have that policy or, more common, don’t enforce it, the NLRB will likely allow unions to come on your property to solicit employees, since you are allowing others to solicit your employees on site as well.

To remain union-free, employers must be aware and be proactive regarding pro-union solicitation. However, employers that are overly zealous in their efforts to deter employees from joining labor organizations may be in violation of the National Labor Relations Act (“NLRA”). To paraphrase Clint Eastwood “you gotta know your limitations”.

The National Labor Relations Board (“NLRB” or “Board”) has developed a set of highly technical rules regarding their enforceability. For instance, a rule that prohibits solicitation by employees during “work” or “working” time and is consistently enforced is presumptively valid and will be upheld. A rule that prohibits solicitation during “company time,” however, is unlawful on its face. The Board has held that the expression “company time” does not clearly convey to employees that they may lawfully solicit while on breaks, lunch, and before or after work.

The Board has issued similar rules regarding distribution of literature policies. A policy that prohibits distribution during “work” or “working” time is valid. Because literature and other materials may create a hazard if discarded in a production area, the Board also upholds policies that prohibit distribution in “work” or “working” areas. Examples include the shop floor, production areas, and other places where employees perform their jobs. Again, the Board has found a distinction between “working areas” and “company property,” however. According to the Board, the latter could include lunchrooms, locker rooms, and parking lots, where employees are permitted to distribute written material. Thus, precise language must be used when drafting these policies.

Additionally a policy will not be upheld if it is not consistently enforced. The rules on consistently enforced were changed by a Board decision in 2007.

In the past there were limited exceptions. An employer could not, for example, allow employees to sell Girl Scout cookies during work time and in work areas while prohibiting employees from circulating a petition demanding increased wages or more vacation time. The one exception is the so-called “United Way” exception for charitable solicitations when employers were allowed a small number of charitable solicitations without invalidating an otherwise lawful no-solicitation policy.

(Remember that employees can solicit for things like unions, Girl Scout cookies, sub-sales, etc. during non-work time, i.e., on their breaks, and in non-work areas, e.g., lunchrooms, locker rooms, and parking lots).

The NLRB decided in 2007 that employers may limit pro-union communications under the National Labor Relations Act (NLRA). The case arose after a company disciplined an employee for sending emails to other employees regarding union activities. One email asked employees to wear green to support the union’s bargaining proposals and another email solicited employees’ participation in the union’s involvement in an upcoming parade.

In this case the NLRB decided that the NLRA protects the communications themselves; however, the Act does not give employees the right to use work time or the employer’s equipment to communicate. The NLRB held that employers own their email systems like they own their walls and bulletin boards. Therefore, the NLRB ruled, there is no inherent right protecting employees’ pro-union email communications. Employers therefore may ban email communications for non-business related solicitations.

Although employers cannot prohibit employees from discussing pro-union sentiments on the employer’s property during non-work time, employers may require employees to limit union activities to non-work time. Employers are also permitted to ban employees from soliciting each other for non-work purposes during work time.

Under this new rule, if the employer prohibits solicitations on behalf of third party organizations (unions, political groups, insurance salespersons, etc.), then the employer may prohibit union solicitation as well, even if the employer tolerates personal emails that do not contain solicitations.

In the decision the NLRB has also expressly recognized that an employer may make other distinctions, so long as the lines are not drawn to disfavor unions over other similar groups. For example, the employer may allow solicitations by charitable organizations and ban solicitations by everyone else. In that way, the employer would not “discriminate” against solicitations protected by the NLRA, but rather would “discriminate” (lawfully) against all solicitations except for charitable ones.
The NLRB’s decision applies to union and non-union employers alike. Employers may wish to review their non-solicitation and distribution, bulletin board, and email policies to ensure it conforms to the 2007 opinion standard. It also bears noting that this case was decided by a bare majority of three NLRB members, with two members dissenting. Once the Board membership changes (as it generally does with a new administration), the applicable legal standards may once again change.

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Additionally, we have several people who “sneak around” and run unofficial sports or lottery ticket pools. As long as it doesn’t cut into work time, we don’t make a big issue out of it.

On the other hand, we prohibit any kind of coercion by the seller. Haven’t ever had a problem in this regard, but the policy is there in case it’s needed.

You describe the situation perfectly.