SOLICITING MEMBERSHIP ON DUTY TIME
While management seems to work very hard to avoid unions soliciting new members in work area or while anyone in the area is working, it is illegal to prevent it. The FLRA has held that union reps can solicit new members while in work areas, even if the employees are working—at least under certain circumstances. Here is how this works. Section 7102 of the Statute protects employees’ right to solicit union membership. While section 7131(b) of the Statute requires that such solicitation be performed when employees are in a “nonduty status,” the Authority has held that unions may solicit new members during paid breaks and lunch periods. Moreover, it has stated that where employees, at the discretion of management, have been assigned periods of time during which the performance of job functions is not required (i.e., paid free time), … such time falls within the meaning of the term nonduty status as used in [§] 7131(b)[,] and solicitation of membership during such time is permissible. Thus, employees may be in a nonduty status, and may be solicited, despite the fact that they are being paid during the period at issue. This is consistent with private sector precedent. See, e.g., Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1250 (5th Cir. 1992), reh’g denied, 968 F.2d 18 (1992), cert. denied, 506 U.S. 985 (while it is permissible to ban solicitation during “working hours[,]” “[t]he term ‘working hours’ does not include break periods, whether informal or regularly scheduled.”) Thus, the fact that the employees’ breaks are not scheduled does not demonstrate that they are in a duty status during those breaks. (See AFGE, 61 FLRA 562 wherein the FLRA allowed the union to solicit new members during any portion of firefighters’ 24-hour shifts when management was not requiring them to work.)
As if that is not clear enough, the Authority ruled that where employees freely discuss personal matters during work time and on their breaks the union is allowed to talk to them about joining. (See AFGE, 45 FLRA 537) In fact, the broadest statement of the union’s right to solicit new members during the work day was made in NTEU, 29 FLRA 684 where the Authority said, “. . . such right may even extend to solicitation in work areas (not here involved) absent any disruption of the Activity’s operations or other unusual circumstances.” (See also AFGE, 13 FLRA 409)
Maybe the most common place where the union rep can effectively exercise this right is in a formal meeting where there is a break in the conversation and employees are free to talk about what they wish. Or it could be in the rep’s own work area where employees are allowed to talk while working. In any event, the law is on the side of the union reps seeking to sign up new members so long as he/she is not disrupting agency business.