In a recent decision involving The Boeing Company1, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) found that Boeing violated the National Labor Relations Act (NLRA) when the Human Resources manager at its North Charleston, South Carolina plant, told an employee that he could not “talk about or solicit” for the Machinists’ Union “on company time.” The employee asserted that a supervisor had reported to the HR manager that employees had overheard the employee speaking about the Union on company time.

The employee admitted that he was aware of the Company policy providing that he could speak with employees before and after work, and during lunch and break times, provided that those to whom he was speaking also were on break or lunch times. According to the employee, however, the HR manager told him that she wanted to “make sure he was aware of that and asked him to repeat after her that he would not talk about the Union on Company time.”

The ALJ found that employees regularly spoke with one another during work time about “family, children, sports (Little League) and life in general” and that the employee had talked to supervisors about “sports, blood pressure medications and his supervisor’s traveling church choir.”

Citing the Board’s decision in Jensen Enterprises, Inc., 339 NLRB 877 (2003) holding that an employer may forbid employees from talking about a union during periods when the employees are supposed to be actively working, if that prohibition also extends to other subjects not associated nor connected with their work tasks,” the ALJ noted that the Jensen decision also held that an employer violates the NLRA when employees are forbidden to discuss unionization, “ . . . but are free to discuss other subjects unrelated to work, particularly when the prohibition is announced or enforced only in response to specific union activity in an organizational campaign.”

Many employers have adopted “no solicitation/no distribution” rules which restrict employees from soliciting co-employees for any purpose during “work time” or limiting the distribution of written or printed materials for any purpose to “non-work areas and non-work time.” “Non-work time” is defined as break or meal periods or time before and after scheduled work time. Although at first blush, it would seem that the ALJ’s decision in this case goes beyond the established limits for no solicitation and no distribution rules, the facts in this case indicate that the HR manager’s statement of the Company’s rule went beyond the permissible limits, particularly where it was clear that employees were free to discuss matters unrelated to the Union with one another during work time.

Certainly non-union employers should have in place a valid no solicitation/no distribution rule. This case demonstrates how important it is that the rule be enforced uniformly so that exceptions are not made for solicitation concerning matters other than supporting a union, with the rule enforced only when employees are engaged in union organizational activity.