Protecting Employee Solicitation – Distribution Rights from Union Waiver

Section 7 of the National Labor Relations Act guarantees various fundamental rights to employees, including the right to self-organization. Recognizing the inherent superiority of the work place as a situs for organizational activities, the courts and the National Labor Relations Board (hereinafter NLRB or Board) have balanced the property interests of employers against the organizational interests of labor and concluded that employees have the right to distribute literature on the employer’s premises in nonworking areas during nonworking time and to solicit support during nonworking time for purposes protected by Section 7, unless special circumstances of production, discipline, or safety are present. In NLRB v. Magnavox Co., the Supreme Court held that unions do not have the power to waive these employee rights. After discussing the historical treatment accorded union waivers of employee solicitation-distribution rights, this note will examine the Court’s holding in Magnavox and the policies behind its decision. This note will then explore the conclusions reached by subsequent judicial and NLRB decisions concerning the types of solicitation and literature distribution which are immune from union waiver. Finally, this note will suggest that unions must be precluded from waiving any employee solicitation-distribution rights in order to effectuate the central objectives of the nation’s labor policy.