What special solicitation rules apply to services and retailers?
Health care facilities. The National Labor Relations Board (NLRB) has adopted special guidelines for health care facilities, which are legitimately concerned about solicitation activity that might disturb patients. Generally, solicitation may be prohibited from patient care areas such as operating rooms, treatment rooms and patients' rooms. However, for other areas, such as cafeterias, lounges and lobbies, there must be a showing that the patients use those areas and that their care may be disrupted by the union activity.
Health care institutions, such as hospitals and nursing homes, may ban solicitation at all times in immediate patient care areas. "Immediate patient care areas" would include patients' rooms, operating rooms and places where patients receive treatment, such as x-ray and therapy areas. In addition, halls and corridors adjacent to immediate care areas are considered by the NLRB to be extensions of such areas, and, thus, solicitation in them may be banned at all times.
Some states have special rules for health care facilities. Check State Laws for any laws that might apply in your state(s).
Retail sellers. Special solicitation and distribution considerations apply in retail businesses. Because of the presence of customers in the work area, solicitations in selling areas, on elevators and in walkways may be prohibited by retail employers during both working and nonworking time. However, they cannot be banned from nonselling and nonwork areas.
Even where a no-solicitation rule involves a very limited ban on employee communications and does not distinguish between union and nonunion activity, if the employer fails to show a legitimate business need for the restriction, then the restriction will be found unlawful.
Further, where a retail store has a cafeteria that is open to the public (as opposed to being for employees only), solicitation in that area must be permitted during nonwork time.
Restaurants. An exception to the rule that nonemployee organizers may be denied access to an employer's property when alternative means of communication are available appears to have been carved out for restaurants open to the public on the employer's premises. Stores cannot lawfully prohibit solicitation in their public restaurants by nonemployee organizers who conduct themselves in a manner that is nondisruptive and consistent with the restaurant's normal use.
Reprinted with permission. © CCH