Target Targeted by NLRB for 'Non-Solicitation' Policy

By William Peacock, Esq. on May 06, 2013 | Last updated on March 21, 2019

Is there anything more annoying than being accosted by solicitors outside of a grocery store? Your skin is charred by a sunburn, you are in pain, and in a desperate need of Aloe gel. Instead, there are three charities, four chirping Girl Scouts, and a representative of a cult-like institution clamoring for your attention as you run, red-faced, into the store.

It's enough to make you want to shop elsewhere. This is why many stores now have non-solicitation policies. Of course, some say that the purpose of these non-solicitation policies goes beyond commercial solicitation or annoying beggars. They argued that the true purpose was to block out unions, reports Reuters.

Last week, the National Labor Relations Board agreed, and ordered national retailer Target to hold a new union election, post notices clarifying the non-solicitation policy, and provide workers with inserts for their employee handbooks detailing newly-written policies.

Of course, the NLRB's ruling didn't come out of nowhere. The company's blanket non-solicitation policy, which prohibited soliciting, distributing literature and other actions on store property or via telephone and corporate email if they were for personal profit, a commercial purpose or for a non-sanctioned charitable cause, was just one of the alleged anti-union activities.

That policy was presumptively invalid, according to the NLRB, because it did not limit its application to working hours or working areas. It could be interpreted, by a reasonable employee, to limit union solicitation and distribution of materials.

According to Reuters, the board also indicated that Target managers allegedly encouraged employees to interpret the rule to prohibit union solicitation, as unions are a "business" that "sells memberships." Other allegations included coercive interrogations, threatened reprisal, and leaflets that threatened closure of the store if the workers voted to unionize.

If your company has a brick-and-mortar presence and/or a non-solicitation policy, the board's ruling might be worth taking it look at. Though Target's policy didn't explicitly ban union activities, the NLRB found that such an interpretation was certainly reasonable. The other alleged anti-union activities likely didn't help the store's cause either.

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