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Austin J. Wishart, Associate Member, University of Cincinnati Law Review
Labor law contains innumerable tests, presumptions, and rules designed to solve individual issues within the employer-employee relationship. This article will provide a background on one of these presumption in Part I, then analyze modern challenges facing the presumption in Part II. The presumption at issue, the Peyton-Packing presumption, is a two-pronged presumption that applies to cases where an employee engages in union solicitation during working hours. Originally promulgated as a rule by the National Labor Relations Board (NLRB), Peyton-Packing presumes that (1) a facially neutral rule prohibiting solicitation during working time is valid absent proof that the rule was enacted for a discriminatory purpose, and (2) a facially neutral rule prohibiting solicitation during non-working time is invalid absent special circumstances making the rule necessary in order to maintain production or discipline. This presumption relies on a deeper assumption: that working time and non-working are distinct. Does this presumption stand up to scrutiny in the modern workplace?
The Peyton-Packing presumption was established by the NLRB in a case concerning a meat-cutter and butcher’s union, the Amalgamated Meat Cutters (AMC), and their meat-packing employer, Peyton Packing Company. Issue arose when, during the union’s organizational campaign, the vice-president of the company issued a notice throughout the meat-packing plant. The notice informed all workers that they were forbidden from engaging in solicitation of any kind and that any worker soliciting on company property or time would be discharged without exception. Nine employees were discharged for violating the rule.
On review of the case, the Board noted that the notice contained both permissible and impermissible language under the Nation Labor Relations Act (NLRA). The Board first recognized that working time is for working and it is thus within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule is presumed valid in the absence of evidence that it was adopted for a discriminatory purpose. The Board then recognized that break-time, or time on work property spent not working, is employee time and it is thus not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours.
The Supreme Court affirmed the Peyton-Packing presumption as the proper test for workplace solicitation issues when it considered an appeal of another Board decision. In Republic Aviation Corporation, the employer prohibited soliciting of any type in the factory or offices. On review, the Board found that this policy was a violation of Peyton-Packing because a blanket ban on all soliciting curtails the long recognized, reasonable, and legitimate union activity right of employees to wear union insignia at work, and the company’s curtailment of that right with a broad soliciting prohibition is violative of that right. In considering the issue of applying the presumption, the Court perceived no error in the Board’s adoption of the Peyton-Packing presumption and that the presumption was the product of the Board’s appraisal of normal conditions about industrial establishments.
While the Peyton-Packing presumption may have made sense in the workplace context in which it was established, the normal conditions of industrial establishments that the presumption applies to and relies on have changed radically. Workplace conditions, including the prevalence of out-of-work communications, and the structure of the workplace have changed dramatically in the nearly eighty years since the presumption was established.
The means of communication have undergone the most radical changes between the years 1945 and 2022. In 1945, the typical means of communicating consisted of in-person communication, letters, telegraph, and, most advanced, the telephone. The first mobile phone would not reach the consumer markets until 1973. The first commercial public email service to use the internet would not appear until a decade later in 1983. The modern smartphone was unveiled to the world for the first time a mere fifteen years ago in 2007. These three technologies—the mobile phone, the email, and the smartphone—have facilitated a more efficient workplace, while also facilitating a growing prevalence of out-of-work communications with employers and coworkers. Communications with employees outside of working hours have grown to the point of countries like Portugal, France, and Spain passing ‘right to disconnect’ laws.
Perhaps the most recent change in workplace conditions comes from the structure of the workplace. The workplace during the Covid-19 pandemic has become increasingly diffused into the home of the employees. Prior to the beginning of the Covid-19 pandemic in late 2019, early 2020, only 6% of employees worked primarily from home and about three-quarters of workers had never worked from home. However, by May 2020, ‘work-from-home’ policies allowed over one-third of employees to work from their homes instead of commuting to their workspace.
Taken as a whole, these three conditions lead to a breakdown of the presumed work time and non-work time division. Employers have instant access to employees during non-work times via their phones and emails. Further, these employees may be in a work-from-home arrangement where their designated workplace is also their home. This leads to a situation where the workplace boundaries, both physical and virtual, are blurred and time spent working and non-working flows seamlessly.
The current situation, and the trend it indicates, poses a substantial threat to the presumption that the Peyton-Packing presumption relies on. If the workplace and home, along with working time and employee time, are seamlessly blending together, it becomes unclear when a labor organizer may properly solicit employees. This poses an issue for all parties involved. Employer policies for soliciting employers must be broad enough to include working time that may occur after traditional hours, but not so broad as to include non-working time in a work-from-home situation. Employees must be wary of when they communicate with labor organizers, as time that is seemingly employee time may be interpreted as work-time due to a well-timed text message from the employer during a work-from-home situation. Labor organizers must tread lightly, for fear of getting employees fired by inadvertently soliciting during working hours.
The Peyton-Packing presumption, while a valid precedent and applicable to the traditional workspace, faces challenges in 2022. Workplace conditions, namely the means of communication, the prevalence of out-of-work communication, and the structure of the workplace have changed dramatically in the nearly eighty years since the presumption was established. These changes challenge the Peyton-Packing presumption: that there is a definitive difference between work time and non-work time. As the workplace continues to diffuse throughout our day-to-day lives, the demarcation between these two times will converge into a single, pseudo-work, pseudo-rest time. As this happens, foundational presumptions of labor law like the Peyton-Packing presumption will need to be reconsidered to adequately reflect the current workspace. While the Peyton-Packing presumption has been considered by the circuit courts in 2016, the presumption has not been revisited by the Supreme Court since 1978. With nearly eighty years since the presumption’s adoption and nearly fifty since it was last considered by the Court, current workplace developments necessitate a consideration, and possible reconsideration, of the Peyton-Packing presumption and the presumptions it relies on.
 Beth Israel Hosp. v. NLRB, 437 U.S. 483, 509 (1978).
 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 804 (1945).
 In re Peyton Packing Co., 49 N.L.R.B. 828 (N.L.R.B. May 18, 1943).
 Id. at 832.
 Id. at 843.
 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
 Id. at 794-795.
 Id. at 802 (quoting 51 N.L.R.B. 1187-88).
 Id. at 804.
 Tania Teixeira, Meet Marty Cooper – the inventor of the mobile phone, BBC News (Apr. 23, 2010), http://news.bbc.co.uk/2/hi/programmes/click_online/8639590.stm.
 Hagley Museum and Library, Growing MCI, William G. McGowen’s MCI, https://www.hagley.org/research/digital-exhibits/growing-mci.
 Steve Jobs, Keynote Address, Macworld San Francisco 2007 (Jan. 19, 2007), https://web.archive.org/web/20101222223204/http://www.apple.com/quicktime/qtv/mwsf07/.
 Vicky McKeever, Portugal makes it illegal for bosses to contact employees outside working hours, CNBC Work (Nov. 15, 2021), https://www.cnbc.com/2021/11/15/portugal-bans-bosses-from-contacting-employees-outside-working-hours.html.
 Patrick Coates, Remote Work Before, During, and After the Pandemic, NCCI Quarterly Economics Briefing–Q4 2020 (Jan. 25, 2021), https://www.ncci.com/SecureDocuments/QEB/QEB_Q4_2020_RemoteWork.html.
 ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079 (8th Cir. 2016).
 Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978).