Employers, Leave Those Union Flyers in the Breakroom Alone…

In the past, when cleaning employee breakrooms, employers have been able to dispose of any papers left behind – including union flyers. But a recent case from the National Labor Relations Board suggests a hands-off approach to union flyers in employee breakrooms.

In Apple, Inc., an Apple store had a Solicitation and Distribution policy that, in relevant part, prohibited employees from distributing material during work time or in a work area. (The National Labor Relations Act protects employees’ rights to distribute union materials during non-working time in non-work areas, absent the showing of “special circumstances” necessary to maintain production or discipline). The store also had an employee breakroom with a large table and chairs, where employees sat to eat, read, and converse. Employees were supposed to clean up their own trash.

Union flyers were placed on the breakroom table one day in connection with a union organizing campaign. Soon after the employees left them on the table, unattended, they were removed by store managers. This happened repeatedly over several days. When asked why the flyers were removed, a manager responded that they were implementing the non-solicitation policy and enforcing housekeeping and cleanliness standards. The union then filed unfair labor practice charges against the employer.

An administrative law judge found, and the Board agreed, that the employer had violated the National Labor Relations Act by removing the union flyers from the breakroom table. The Board held that neither the non-solicitation policy nor the housekeeping standard provided a basis for the removal of the flyers. Although the store tried to analogize the table to a company bulletin board (which an employer can restrict to company-issued communications only) under its non-solicitation policy, it was clear that the table was used for far more than communicating company information. The Board also agreed that the housekeeping and cleanliness standard did not support the removal, since the employer allowed non-union materials (like baskets of fruit, Shake Shack coupons, or newspapers) to remain on the table at other times. It held that the employer unlawfully confiscated union materials in a non-work area and applied its non-solicitation and housekeeping and cleanliness standards in a discriminatory fashion.

What this means for employers is that they must be very careful in dealing with union materials in employee breakrooms. These are non-work areas in which employees have the right to distribute union materials during their non-working time. It may be possible to have a policy that prohibits any materials from being left unattended, but such a policy would need to be consistently enforced for all items – including things like fruit or food coupons.