No Solicitation/Distribution Rules

Introduction

The above questions sounds pretty straight-forward. The answer is: It all depends. Whether a grocery or other retail employer can permit Salvation Army bell-ringers to solicit on-site during Christmas but prohibit unions from distributing literature outside its stores may indeed depend on what states those stores are in.

The National Labor Relations Board (NLRB) has handed down a variety of rulings on the issue over the past several years, some saying that employers discriminated against unions by permitting charitable groups to solicit on-site, others finding that permitting charitable fund-raising activities does not constitute disparate treatment of union organizers and handbillers.

To complicate matters further, federal appeals courts have not been in agreement on the issue, either.

This newsletter will review the most recent cases, how the NLRB made its determination in each instance, what happened on appeal, and will offer suggestions to employers as they seek to control the message on their property.

Recent cases

Applying its "disparate treatment rule," in November 1997, the Board, in a split decision, found the employer, a retail grocery store chain in the Midwest, had enforced its no-solicitation rule in a discriminatory manner by prohibiting the United Food and Commercial Workers (UFCW) from soliciting and distributing literature to the employer's off-duty employees on the sidewalks and parking lots outside two of the employer's stores. The employer had a no-solicitation policy, but permitted certain solicitations by charitable organizations directed at the employer's customers.

The NLRB held that an employer who regularly allows non-union organizations to solicit and distribute literature on its property may not deny a union access to its off-duty employees. In the Board's view, it made no difference that the solicitations by charitable organizations were directed at the stores' customers, while union solicitations were directed at employees. Additionally, nothing in the employer's policy suggested that non-employees were prohibited from soliciting or distributing literature to off-duty employees on the sidewalks or in the parking lots adjacent to the employer's store. The employer was ordered to grant the UFCW access to the sidewalks and parking lots adjacent to the two stores for 60 days to allow union representatives to communicate with the employer's off-duty employees.

Tenth Circuit

The NLRB was recently upheld by the Tenth Circuit Court of Appeals (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming). In its Dec. 18, 1998, decision, the court rejected the employer's argument that the non-union solicitations were sufficiently insignificant to qualify for the "beneficent acts" exception to the discrimination prohibition of Section 8(a)(1) of the National Labor Relations Act (NLRA). That exception provides that the "employer's decision to permit nonunion solicitation does not violate the NLRA if the solicitations consist only of a small number of isolated 'beneficent acts' that constitute narrow exceptions to an otherwise absolute policy against outsider solicitation."

Fourth Circuit

On the other hand, in July 1996, the Court of Appeals for the Fourth Circuit (covering North and South Carolina, Virginia, West Virginia, and Maryland) rejected the NLRB's position that the employer, another retail grocery store chain, violated federal labor law when it banned informational picketing and handbilling while allowing solicitation by civic and charitable organizations. Union pickets at two supermarkets in Ohio and West Virginia, while not attempting to organize the stores' employees, urged customers to boycott the markets. The Board found that the employer's solicitation policy violated the NLRA because it left all access decisions up to the employer's discretion, but the court disagreed, saying "an employer must have some degree of control over the messages it conveys to its customers on its private property. An employer has a right to prevent the use of its property for conduct that undermines its business, and that right does not in and of itself discriminate against union activities and in favor of charitable solicitations."

The Fourth Circuit reached the same conclusion in a case involving a grocery chain with 30 retail stores. Overturning the Board, the court held that the few incidents of nonunion solicitation cited by the Board as violating Section 8(a)(1) are no more than would be expected at any large retail chain that was zealously defending its property rights. Moreover, the court stated, to affirm the Board's decision would be to hold that if an employer ever allows the distribution of literature on any of its property, it must open its property to paid nonemployee union picketers. "We are confident that the Supreme Court never intended such a result," the court concluded.

Sixth Circuit

A similar conclusion was reached in September 1996 by the Sixth Circuit, which covers Ohio, Michigan, Kentucky, and Tennessee. Here the Board had sided with the UFCW in a dispute with the managers of an Ohio strip mall. Union handbillers, who had been distributing literature criticizing a mall tenant food store for employing nonunion workers, refused the mall manager's request to leave and ignored "No Soliciting" signs until asked to leave by the police. According to the court, nothing would be gained by a decision that barred charitable organizations under labor law. Mall managers were within their authority in barring union handbillers, the court said, and they were free to continue to allow charities to distribute their literature.

What to do?

Despite the favorable court cases, the NLRB can be expected to continue to refuse to permit non-solicitation/no-distribution rules that are too broad. In other words, an employer cannot create a blanket exception in the face of its no-solicitation/no-distribution rule for solicitation by charitable and/or civic organizations. Only very narrow exceptions to an otherwise valid rule may pass the Board's muster. While one or two exceptions over a period of year may not violate the Act, four or more exceptions over the course of a year probably will. Additionally, the Board will evaluate the nature of the exception: an exception granted for a charity will be viewed more favorably than on granted for civic purposes, which, in turn, will be viewed more favorably than one granted for commercial purposes. The duration of the exception is also a factor: three exceptions granted for charitable and/or civic purposes for one day each will likely meet the "small number of isolated beneficent acts" standard, but two exceptions granted for a protracted span of weeks or months will probably be found to constitute discrimination against legitimate union activity.

A no-solicitation/no-distribution rule must be in place before the start of union activity to avoid a charge of unlawful retaliation. It should be clear, specific, and carefully tailored, keeping in mind the limitations imposed by the NLRB, and should be uniformly and consistently enforced. An employer may want to consider posting signs indicating that solicitation and distribution are prohibited on the premises.

Current employment issues

The U.S. Supreme Court has agreed to review three appeals court decisions involving the Americans with Disabilities Act in the workplace. Two cases concern the issue of whether a plaintiff should be considered in his or her unmedicated or unassisted condition when determining whether the individual is disabled under the act. The Equal Employment Opportunity Commission maintains that a disability should be evaluated without considering the effects of medication or assistive devices. The third case involves a truck driver with vision in only one eye who was discharged by a grocery chain. The appeals court ruled that the driver had an ADA-covered disability and could proceed with his wrongful discharge claim.

The FMI Labor Information Service is intended to provide timely information on regulations and court decisions involving labor-related matters of concern to the grocery industry. This newsletter is for general information and is not intended to substitute for advice of counsel. On those occasions when FMI members need the immediate help of a labor and employment attorney, FMI's consultant, Thomas P. Krukowski of Krukowski & Costello, S.C., will answer your questions on the phone. The law firm's 19 attorneys solely represent management's interests in all areas of labor and employment law; clients include many in the grocery industry. For questions that can be answered in less than half an hour, there will be no charge to FMI members. If the issue requires more time, Mr. Krukowski will advise you and it will be necessary to work out a mutually satisfactory arrangement with him or another attorney in the firm. Mr. Krukowski's phone number in Milwaukee is (414) 423-1330.

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