Free Speech at Work

OUR RIGHTS TO SOLICIT, DISTRIBUTE, TALK AND WEAR STICKERS OR BUTTONS

Sometimes our Union will attempt to resolve workplace problems by mobilizing members to persuade the company to settle their disputes or the disputes of members who work at other facilities.  When members do so, they exercise certain rights including the right to solicit new members, to distribute literature, talk to each other and the general public, and to wear stickers or buttons at the workplace.

Distribution

Members generally have the right to distribute literature any time, anywhere at the workplace.  The law however allows companies to restrict distribution to nonwork time and in nonwork areas if the company follows several requirements.

Members have the right to distribute union literature during their nonworking time and in nonworking areas.  Rules prohibiting distribution of literature in nonworking areas during nonworking times are unlawful.  As a result, members always have the right to distribute literature during nonwork time in nonwork areas.

Work time and nonwork time

Work time is only the time when members are actually performing job duties.  Nonwork time is any time other than work time.  Work time does not include time when members take or make personal phone calls, punch in or out, or otherwise stop performing their work duties, even if they are still on the clock.

Example: Members are not on work time when they are on the way to the breakroom, smoking area, restroom, water fountains, or entering or leaving the facility.  In one case, a member was not working during the time the member went to get coffee, from the time the member left the member’s work area, walked to the coffee machine, waited for the cup to fill and until the member returned to the work area.

For this reason, nonwork time is much broader than just meal and other breaks.

Work areas and nonwork areas

Work areas are only those areas where members regularly perform a significant amount of work that directly relates to the main function of the facility.  It is not all areas of the facility except breakrooms.  Like the term nonwork time, nonwork area means all areas other than work areas.

An area does not become a work area merely because some work functions occur there.  For example, a store parking lot is not a work area merely because members retrieve carts or assist customers loading purchases into cars there.

“Mixed use areas” are nonwork areas.  Mixed use areas are areas where members work but also where they spend nonwork time.  For example, a hallway is a nonwork mixed use area where both socializing and work incidental to the company’s main operation occur.  Even areas that are otherwise work areas can be converted to nonwork areas if companies allow members to be there when they are not working.  For example, an area used for production during most of the day but as a lunchroom during the lunch period is not a work area when used as a lunchroom.

Member Rights To Talk To Each Other: The law guarantees members the right to communicate with one another at the workplace about the Union.  A company cannot restrict members from talking about the Union while they are working even though the company claims that the discussion interferes with productivity.  Past practices also can give members the right to talk, if for example, the company allowed members to talk about other topics during work time.

The subjects members have the right to talk about: Members have the right to talk about all workplace issues such as collective bargaining, employment terms, organizing, campaigns, Union meetings and politics that affect the workplace.

Rights To Talk To Outsiders: If a company permits members to have casual conversations with customers, members also have the right to talk to customers about the Union and workplace disputes.  Similarly, members also have the right to talk to each other about protected subjects in the presence of customers.

UFCW employers have conceded that members possess the right to speak to customers while working on the salesfloor about workplace disputes.  For example, in response to a UFCW letter notifying Safeway chain Vons that members would be talking with customers over bargaining messages on stickers they would be wearing while working on the salesfloor, the Labor Relations Director recognized that both Safeway’s practice and the law allow for certain dialogue between members and customers.  This right includes the right to talk about workplace issues with other outsiders, such as the employer’s business partners, investors, vendors, suppliers and advertisers.

Solicitation: In general, members have the right to solicit anywhere on the company=s premises.  Companies may not ban solicitation during nonwork time.  The law however allows companies to prohibit solicitation during work time.  Stores may restrict work time solicitation on “salesfloors” when the store is open.

Solicitation means only asking someone to sign an authorization card.  This is because worker productivity can be interrupted when one worker asks another to sign an authorization card, the second worker agrees, stops work, completes and signs the card, and then returns the card to the first worker who stood by while the first filled out and signed the card.

            Talking is not the same as “soliciting”: Companies may not restrict members from talking about the Union under no-solicitation rules.  In other words, talking about the Union is not solicitation and does not violate no solicitation rules.  For example, in one Wal-Mart case, despite the store’s concern for customer service, a worker did not solicit when during work time the worker asked a coworker if she had an authorization card and invited co-workers to a Union meeting.  Simply informing a worker of a meeting, asking a union-related question or talking about whether the Union is good or bad does not interrupt worker productivity enough to justify the company prohibiting such communication as “solicitation.”

The Right To Wear Stickers And Buttons: Most members have broad rights to wear Union stickers and buttons while working at the workplace.  This includes stickers or buttons supporting members’ own bargaining and disputes, or members in other bargaining units.

IMPORTANT: The rights of members who work in processing plants may be limited to wearing certain non-paper stickers by the U.S. Agriculture Department.  If you work in a processing plant, please check with your Local before wearing stickers or buttons while working on the workfloor.

            The right to wear stickers or buttons during nonwork time in nonwork areas: Companies other than processing plants may not have rules that restrict members from wearing stickers or buttons during nonwork time in nonwork areas.

The right to wear stickers or buttons during work time in work areas or on the salesfloor: Members who do not work in processing plants possess broad rights to wear stickers or buttons while working in work areas or on salesfloors.  These rights are protected by the main federal labor law or the National Labor Relations Act and contracts under, for example, no-discrimination or Union activity provisions or past practices.  Absent “special circumstances,” discussed below, companies may not restrict these rights.

The right to wear stickers or buttons can be based on the past practice of members wearing stickers or buttons showing other messages: Past practices may protect rights to wear stickers or buttons.  For example, if a company disregards dress codes and permits members to wear other stickers or buttons, this past practice effectively modifies the dress code to allow members to wear Union stickers or buttons.

In one case, the company requested members to remove buttons based on a policy.  But despite the policy, members regularly wore other types of buttons, including religious and sports team buttons, and supervisors knew they did.  Because of this past practice, the company could not restrict members from wearing Union buttons.

Past practices may also establish the right to wear stickers or buttons of a certain size.  When companies allow large buttons, they create past practices giving members the right to wear similarly sized or smaller stickers or buttons.

            The law presumes restriction on stickers or buttons to be unlawful: Members have a near‑absolute right to wear Union buttons.  Consequently, companies almost always commit unfair labor practices when they restrict stickers or buttons.

            In limited circumstances, companies may restrict stickers or buttons: To overcome the presumption that rules restricting stickers or buttons are unlawful, companies must prove real harm to their business, or “special “circumstances,” and that the harm outweighs worker rights.  Only 4 types of business harm justify restrictions on stickers or buttons.  These are threats: 1) to discipline, 2) to safety, 3) of damage to property or product and 4) to public image.

Threats to discipline: While in limited circumstances threats to discipline may justify restrictions on stickers or buttons, companies may not just baldly say that stickers or buttons might lead to disorder or disruption, or attempt to rely on an unsubstantiated fear of conflict between members.  For example, a company’s fear concerning a “Scab” button did not, without more, justify restrictions.

Rather, when a company attempts to restrict stickers or buttons because they will cause dissension, the company must prove that there is a likelihood – not just a possibility – that they will cause disorder.  For example, a company could not restrict a button with an inflammatory message because there was no evidence that the button would cause any workplace disruption.  And, companies may not restrict stickers or buttons merely because members wear them at a time when the workplace is already in a state of disharmony or disruption.

Threats to productivity: Although threats to productivity can justify restricting stickers or buttons, they rarely do.  This is because wearing a sticker or button usually will not affect productivity.  Members can wear stickers or buttons while performing their job like stocking shelves or working on plant lines.

Threats to safety: In rare cases companies may restrict stickers or buttons when they prove that stickers or buttons threaten safety.  To prove a safety threat, companies must show that the stickers or buttons cover safety information.  For example, members retain the right to wear stickers on hardhats next to safety stickers so long as the safety information and bright colors of hardhats are still visible.  Ultimately, companies may only restrict stickers based on a safety threat if they can prove that:

● workplace visibility is a problem,

 

● the company uses hardhats or stickers to increase the wearer’s visibility or transmit information, or

 

● stickers interfere with visibility of hardhats or safety stickers.

 

Threat of damage to property or product: Company claims that stickers or buttons pose a threat of damage to the company’s property or product are usually rejected.  For example, companies may not rely on the pretext of preventing objects from falling into or damaging machines or products to restrict member rights.  And there is no threat of property damage if companies permit members to carry loose items in their shirt pockets or workers wear stickers or buttons away from machines.

IMPORTANT: These rules may not apply to processing plants because of U.S. Agriculture Department requirements.

In one case, the company did not prove a threat of property damage based on the possibility of falling buttons because the company permitted all members, supervisors and guests to wear plastic name tags attached to their jackets with safety clips, members carried pencils, both loose and clipped, steel rulers without clips, cigarettes, and other things in their shirt pockets.

Even if companies prove that stickers or buttons threaten property or product damage, however, they may not restrict them during times when they pose no threat, such as when the member is no longer on the workfloor or when lines are not running.

            Threats to public image: In rare cases, companies may restrict stickers or buttons to protect their public image.  Companies may not, however, prohibit stickers or buttons merely because they have dress codes or uniform policies.  Companies may restrict stickers or buttons only if they prove that public image is very important to their business, and that stickers or buttons unreasonably interfere with that image.

Rules based on public image must be narrow.  For example, they may not apply to a group larger than is necessary.  In one case, a company unlawfully restricted all members from wearing buttons based on a public image claim because the restriction applied to members who did not come in contact with the public.  Similarly, companies may not prohibit Union buttons when they allow their own promotional buttons.

            In grocery stores, public image never justifies restricting stickers or buttons: Grocery stores may not restrict stickers or buttons based on public image because public image in grocery stores is not that important.  In one case, a company was found to have unlawfully modified its dress code to prohibit on-duty members from wearing buttons because the operation of a grocery store is not so sensitive that buttons detract from worker appearance, even in public areas.  The argument that its uniform dress code attracted customers and increased profits was rejected.  This is because the grocery store business does not traditionally require the same rigor of appearance as other industries. The aprons and smocks of cashiers, clerks and meatcutters worn over white shirts and dark slacks and shoes are simply not the equivalent of traditional uniforms of workers in, for example, world class restaurants.

To base restrictions on stickers or buttons on threats to public image, companies must prove at least four things:

● Public image is particularly important to the company’s business.

 

● Member appearance contributes to the company’s public image.

 

● Stickers or buttons unreasonably interfere with a public image which the company has established through appearance rules as part of its business plan.

 

● The company restricts stickers or buttons only during times when members have direct contact with the general public or remain on the salesfloor while the store is open.

 

            The right to wear stickers or buttons prevails even when members frequently come in contact with customers: Although public image may sometimes justify restricting stickers or buttons, customer contact, alone, never does.  So, speculation that the company might lose customers does not justify a restriction because this right does not turn on the pleasure or displeasure of customers.

Size and color: companies may not restrict reasonably sized and unobtrusive buttons because they do not unreasonably interfere with public image: Even where a company has an image worthy of protection, it may not restrict neat, small and unobtrusive stickers or buttons because their effect on uniforms and public image is minimal.  For example, in one case, the company could not restrict buttons showing the Union’s initials, even though a hotel guest remarked about them, because the buttons were smaller than a dime, neat, inconspicuous and unprovocative, and did not detract from the dignity of the company or reduce business.