When and where may employees solicit on behalf of a union?

The NLRB operates on a presumption that solicitations on behalf of a union may be prohibited during working time. Working time means time actually spent on the job. Nonworking time includes lunch and break periods, as well as time before and after a shift. Nonworking time also includes the period of time between the time when an employee clocks in and the time when the employee is actually scheduled to begin work if the employer treats that period as nonworking time for other purposes such as the payment of wages.

No-solicitation rules must be carefully worded so that they do not cover free time. For example, a rule against solicitation during working hours or on company time is presumptively invalid because it can be interpreted as prohibiting solicitation during all business hours including break periods and lunch periods.

Where may solicitations occur? If solicitation may be curbed only during the time employees are actually working, in what areas of an employer's premises may it be controlled? When an employee is on break, the employe has a right to solicit or be solicited in nonwork areas. Nonwork areas may include lobbies, cafeterias, lounges, and parking lots, but walkways and aisles may qualify as work areas.

Ban on all solicitation. A no-solicitation rule may prohibit all types of solicitation-charities, flowers for a funeral, raffles, union activity-and still be unlawful. The fact that union solicitation is given equal treatment with all other solicitations does not save a rule that covers nonworking time and nonwork areas. Moreover, even a valid no-solicitation rule will not save an employer from an unfair labor practice charge if it was motivated by the union's presence or if the rule was used against union supporters in a discriminatory manner. But an employer will not automatically violate the Act by permitting a small number of beneficent organizations-such as the United Way-to be excepted from a no-solicitation rule. Rather than focusing on the exceptions stated within the rule, the Board will look to all incidents where the rule is applied to determine if it is being used in a discriminatory manner to prohibit union solicitation.