As the office environment starts to come back to life, it’s essential to use caution about allowing employees or outsiders to sell crafts and goodies there. Businesses have permitted annual craft fairs, bake sales, or product vending by employees, families, or the public as a goodwill gesture. If you do, you are opening Pandora’s box.
According to the National Labor Relations Board, employers that allow craft fairs or bake sales on their premises and then refuse to permit equal access to a union representative may be committing an unfair labor practice. And we know there is some national interest in union formation, as depicted in the recent activity at Amazon,
Generally, you cannot be compelled to permit non-employee union agents to distribute literature or solicit membership on company property. However, there are important exceptions to this rule.
One is the “nondiscrimination” exception: An employer engages in discrimination if it denies union access to its premises while allowing similar distribution or solicitation by non-employee entities.
Because of this exception, you may not exercise your usual right to preclude union solicitation and distribution if you allow others “in similar, relevant circumstances.” If a union shows that you treated it differently, you may be dealing with an unfair labor practice complaint.
However, there are some exceptions for nondiscrimination. You may still prohibit union access to your facility even if you allow access to others.
A “small number of isolated beneficent acts” constitutes narrow exceptions to the employer’s otherwise absolute policy against outsider solicitation.
The NLRB has found these to be examples of kind acts:
- Monetary collections for the family of a deceased employee,
- Collections for the hospitalized spouse of an employee,
- United Way solicitations,
- Solicitations for blood from the American Red Cross and
- Collections for employees or families who are financially disadvantaged.
Craft fairs and bake sales do not appear to fit into this category.
The problem with on-premise craft fairs or bake sales is that the employer often permits third-party, non-employees to sell items for personal gain inside the facility. The craft fairs and bake sales are unlike an open house or holiday party in that the employer is permitting and encouraging open solicitation on its property.
Unions can be federally certified when most workplace votes support an election held by the National Labor Relations Board. Alternatively, according to the NLRB, an employer can voluntarily recognize a union if enough workers indicate they would like the union to negotiate on their behalf.
Your safest course of action would be to move the craft fairs and bake sales off company property or discontinue them entirely. Don’t forget to consult your corporate attorney on all aspects of your decisions regarding unionized risks.
About SACS Consulting & Investigative Services, Inc.
If your business is concerned about being unionized, fair labor practices or needs to review its policies and procedures, contact us at (330) 255-1101 for a consultation about ways to update your Human Resources policies and procedures.