EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – Ban on Distribution or Solicitation
Single Topic for Decision 2485E
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401.03000 – Ban on Distribution or Solicitation
Allegation that public school employer specifically prohibited distribution of “union” information during the 30 minutes before the start of the regular work day stated prima facie allegation of employer interference with protected employee and organizational rights because it was overbroad in its categorical ban on distributing flyers at any time during the workday, without regard to off-duty time, such as employee meal or rest breaks. Allegation that public school employer promulgated, maintained and enforced policy whereby employees must be off school property when they hand out union literature stated prima facie allegation of employer interference with protected employee and organizational rights. Blanket geographic ban on solicitation, distribution and access rights is overly broad in that it fails to account for the fact that not all time spent on the employer’s premises is “on duty” or otherwise subject to employer restrictions on union or other concerted employee activity. Legitimate employer concerns of ensuring order, production or discipline in work areas are inapplicable in parking lots, breakrooms, staff lounges or other non-work areas. Allegation that public school employer promulgated, maintained and enforced policy specifically prohibiting employees from distributing materials of “a political or union nature” stated prima facie allegation of employer interference with protected employee and organizational rights by making impermissible content-based restriction. Because the degree of intrusion into an employer’s property or managerial interests does not vary with the content of the material distributed, an employer’s only legitimate interest in regulating such conduct is in preventing employees from bringing literature onto its premises and distributing it there — not in choosing which messages to condone or suppress. In addition to non-work areas, once the employer has opened up other parts of the workplace as a forum for some forms of non-work related speech or expressive conduct, it is generally not free to ban other non-disruptive speech or conduct based solely on its content.