Solicitation policies
king92
3 Posts
Is there a way to have a valid solicitation policy in place that would still allow the company to support local school and community activities (if solicited by employees, not non-employees) and if 100% of contributions go to the organization? i.e. fundraisers for children of employees like soccer clubs, girl scout cookies, boy scout popcorn, etc.
Comments
I think you can require that the organization be a IRS approved non-profit or a government agency: VA, local school district, parks and recreation, red cross, etc. all fit while AMWAY and other garden variety MLMs do not. However, I believe this will allow unions in, too. It will also allow religious groups, race, sex, gender, national origin, and age based national organizations, and members of the official dungeons and dragons not for profit player's club.
Usually better to just say no in my opinion. Keep it all out of the work place.
[quote user="Chicago1"]I agree with TXHRGuy that your best bet is to prohibit all types of solicitation if you want to keep unions from soliciting in the workplace. I think it is okay, however, to allow a well established charity, such as United Way, to solicit once or twice a year and to prohibit all other solicitation.[/quote]
Actually that's not how it works, you don't really get to pick and choose unless you wanted to be battered with a variety of bad-ism charges and/or lawsuits until you relent and let everyone in. If you allow United way, you allow unions. Solicitation is all in or all out. People think they're in control of this at their Company until they get challenged.
Once a union is in, you can't make the solicitation change to prevent union solicitation.
Once someone tries to solicit for a race or religion affiliated organization, you are in the position of being anti them, whoever they are. Can you imagine, "They didn't want <group> -- they hate us because of <group property> - they didn't want us SO MUCH, that they put an end to ALL solicitation at the Company just to keep us out!!"
The NLRB does make an exception to the rules regarding a no-solicitation policy for solicitation by major charities. Under this exception, major charities may solicit on the premises on an infrequent basis. However, employers must be careful that the charity soliciting falls into the category of major charity by NLRB or unions may be able to argue that they should be permitted to solicit as well.
Here's the language from the NLRB's analysis (from Guard Publishing, 351 NLRB No. 70 (2007)):
"[D]iscrimination means the unequal treatment of equals. Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. See, e.g., Fleming, supra, 349 F.3d at 975 ("[C]ourts should look for disparate treatment of union postings before finding that an employer violated Sec. 8(a)(1)."); Lucile Salter Packard Children's Hospital at Stanford v. NLRB, 321 U.S. App. D.C. 126, 97 F.3d 583, 587 (D.C. Cir. 1996) (charging party must demonstrate that "the employer treated nonunion solicitations differently than union solicitations").
For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees. n17 In either case, the employer has drawn a line [*38] between permitted and prohibited activities on Section 7 grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines. n18 For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.
Indeed, the Board has already recognized that allowing limited charitable solicitations does not necessarily require an employer to allow union solicitations. See Hammary Mfg. Corp., 265 NLRB 57 (1982) (an employer will not violate Sec. 8(a)(1) by "permitting a small number of isolated 'beneficent acts'"--such as solicitation for a United Way campaign--as "narrow exceptions" to a no-solicitation rule, while prohibiting union solicitation)."
I agree that you can't implement a policy against union soliciation once you've allowed it. And, of course, a solicitation policy that seems to favor one race or religion over others is not a good idea. But, you can have a solicitation policy that allows for solicitations by major charities and prohibits other solicitation.
If only the NLRB was such an easy animal to tame. Perhaps that is one reasonable interpretation of the totality of NLRB rulings. I don't think it is, although I admit there could have been a sea change ruling recently of which I am unaware and the effects of which have not resulted in popular abandonment of non-solicitation policies, but here is why I would still advise against:
Everyone knows that the various circuit courts often disagree with each other (perhaps most notoriously the 5th and the 9th). So, we know that it's often important to ask, "What state are you in" when dealing with questions about federal statutes and regulations. The NLRB, on the other hand, is often inconsistent with itself. Of course, circuits don't always agree with themselves, often for reasons that are either baffling or that require an in depth analysis of the specifics of the case to understand but the NLRB has appointed members and labor policy can swing wildly across executive administrations. The question of Weingarten rights as they relate to non-union employees are a perfect example. That's been a hokey pokey act with the NLRB for a long time. For that reason, most employers (particularly large ones that have big $ targets on them) choose to have no solicitation in the workplace. Here are some counter examples to the well reasoned argument presented above:
I think the examples you cited were on slightly different issues than the narrow exception for major charity solicitation (when a no solicitation policy is in place), which I think is a pretty long-standing exception.
But, I agree that it's critical to stay on top of the latest NLRB decisions.With a new administration, the NLRB will get a majority of Democrat members. Lots will probably change and employers need to watch out...
I can understand where Chicago1 is coming at based on the info given, but I have to agree with TXHRGuy that it is better to not allow anything. After having worked for a company that was under attack by a union to get into our organization, we found that they use the NLRB interpretations to their liking and sort of made up things as they went. We had lawyer after lawyer advise us to allow no solicitation at all. I know it is sad that it comes down to that, especially when many of these organizations (charities) do a lot of good work, but the unions like to play by their own set of rules and the company just couldn't take the chance.
But, I agree that it's critical to stay on top of the latest NLRB decisions.With a new administration, the NLRB will get a majority of Democrat members. Lots will probably change and employers need to watch out...[/quote]
I agree, that I did not spend the time required to find a case specific to the narrow charity exemption you have outlined. Partly because I only spent 5 minutes and partly because the problem is not really whether or not a narrow exception exists. The question is whether or not the excepted practice is practical to implement. Most legal advisors, probably the vast majority, would agree that it is not. There are a dizzying array of ways in which the company can get tied up in a solicitation dispute, which can lead to ULP claims. The union organizing team's standard practice will be to suck the life out of the company through distraction from core work (or suck the cash out of its coffers by using a contractor to handle the matter to prevent that from happening) to make it capitulate and allow certification or, at least, a vote at the earliest possible moment.
It's very hard to draw a line in the sand and prevent people from arguing which side of the line something might be on, particularly if it's already close to the line. Other lines will be challenged all together. Can NLRB really distinguish between United Way and United Methodists? If so, what about smaller religious charitable organizations? Can you imagine a smaller Islamic charity making the challenge that they are under represented because there is no larger one operating in the US? I don't know if that's true but I can imagine a similar type of situation arising. Can NLRB do that under the current Supreme Court? I can see room for a challenge. I can see why most companies simply don't allow solicitation for a million reasons, this being only one of them.