NLRB Rules That Target's Policy Banning Employees From Selling Goods Or Services For Commercial Purposes On Company Premises May Interfere With Employees' Exercise Of Protected Union Activity

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The National Labor Relations Board (NLRB) continued its trend of finding common personnel policies invalid because, according to the NLRB, employees could read the policies to restrict protected union activity.  The NLRB has long held that an employer’s ban on solicitation that is limited to working time, or on distribution of literature that is limited to working time and working areas, is valid.   However, the NLRB ruled that Target’s policy went too far because it prohibited employees, at all times while on Target's premises, from soliciting, distributing literature and selling goods or services for “personal profit” or “commercial purposes.”  The NLRB found that Target's restriction on selling goods and services for "commercial purposes" could potentially be understood by employees “to mean something different, including solicitation and distribution for other organizations, such as unions.”  The NLRB said its reading of the policy was supported by Target’s statements during a union organizing campaign that a union is a “business” that “sells membership.”  Employers should consider revising similar policies to define “commercial purposes” in a way that explicitly excludes otherwise protected union activity.

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