In California, non-employee representatives of employee organizations generally have the right to access employee non-work areas, and to solicit for union membership or activity and distribute literature to employees in such areas on the employees’ non-work time.
The California Public Employment Relations Board (PERB) has recognized that employers have a legitimate interest in maintaining security and operational efficiency. However, this interest must be balanced against employees’ rights to communicate with their union representatives.
Areas of Union Access
Union access to workspaces is generally limited to non-work areas and non-work times. However, if an employer permits non-business activity in a work area during work hours, the employer cannot prohibit employees from engaging in a similar level of activity merely because it involves employee organization activities. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-M.)
Lunch and Break Rooms – Lunch and break rooms are considered non-work areas where employees typically congregate during non-work time. PERB has consistently held that non-employee representatives of employee organizations have the right to access these non-work areas on the employees’ non-work time, provided it does not disrupt operations. (Regents of the University of California (1983) PERB Decision No. 366-H; County of Riverside (2012) PERB Decision No. 2233-M.)
Employers can restrict this access, but the restrictions must be reasonable. For example, employers can enforce non-discriminatory rules limiting solicitation during working times or require union representatives to identify themselves upon arrival. (San Ramon Valley Unified School District (1982) PERB Decision No. 230.) However, a rule requiring a union representative to secure advance permission to meet with employees on their non-work time in non-work areas would be too overbroad and unreasonable. (Id.)
Email and Digital Communication – Employees have the right to use their employer’s email during non-work time for union-related activities, such as discussions relating to work hours, wages, and other terms and conditions of employment. (Napa Valley Community College District (2018) PERB Decision No. 2563.)
Employers can implement reasonable restrictions on non-work-related email use, such as prohibiting non-work email use during work hours, to maintain order and prevent abuse. (City of Sacramento (2013) PERB Decision No. 2351-M.)
New Employee Orientation – As discussed in a prior LCW Client Update, public employers are required to give a recognized exclusive union representative access to its new employee orientations, with at least ten days advance notice in most cases, and with the details to be determined by mutual agreement. Where a public employer has not conducted an in-person new employee orientation within thirty days of a newly hired employee’s start date, and the new employee is working in person, the exclusive representative has a right to schedule an in-person meeting at the worksite during working hours.
Can employers restrict access?
An employer can restrict a union representative’s access as long as the restriction is reasonable. To be reasonable the regulation must be 1) necessary for the efficient operation of the employer’s business, and 2) narrowly drawn to avoid overbroad and unnecessary interference.
Additionally, these restrictions must be nondiscriminatory in scope and application.
To show a regulation is necessary for the efficient operation of the business, an employer must show that access would be disruptive to its services.
An employer’s rule must be narrowly drawn to avoid overbroad, unnecessary interference with the union’s rights.
Union access to secure places within public sector workplaces involves a delicate balance between employee rights and employer operational needs. As the workplace, technology, and legal landscape continue to evolve in this area, it is vital as a public employer to ensure your policies and practices are legally compliant and incorporate reasonable restrictions that protect your interests as an employer.