When is Talk About Unions Lawfully Prohibited by a No-Solicitation Policy?

Many employers maintain a policy prohibiting solicitation and distribution.  Under long-standing law, these policies, if correctly drafted, can prohibit employees from engaging in certain types of union activity at certain times of the day.  A recent decision from the NLRB, however, makes it clear that these policies have their limits, and raises the question of whether this long-standing law will be modified in future cases.

The case, Conagra Foods, Inc., 361 N.L.R.B. No. 113 (Nov. 21, 2014), involved a union organizing drive at a plant in Troy, Ohio.  An active and open union supporter asked two other employees in a restroom if they would sign authorization cards.  Those employees indicated that they would.  A few days later, the union supporter placed union authorization cards in a locker, as they had previously discussed doing.  As the union supporter walked past the two employees on the production floor, she told them that the authorization cards were in the locker.  She did not ask either employee to sign the authorization card or even show them one.  Instead, she “merely informed” her coworkers that she had done what she told them she would do:  leave the authorization cards in a locker.  The interaction lasted no more than a few seconds. 

The employer gave a verbal warning to the union supporter for violating its no-solicitation policy.  The General Counsel did not allege that the employer’s policy itself was unlawful.  Instead, the NLRB examined the application of that policy to the union supporter.  The NLRB held that the employer could not lawfully apply its policy to the union supporter’s conduct “because her conduct did not constitute solicitation.”  The exchange on the production floor, which would have been the only exchange prohibited by the employer’s no-solicitation policy, merely informed the employees of where to find the authorization cards they had already agreed to sign.  There was no request that the employees sign those cards.  Moreover, the impact on production was minimal because the interaction only lasted a few seconds, one of the employees was waiting for a production line to start, and the other employee, who was cleaning, only stopped cleaning for a few seconds.

Member Miscimarra (R) issued a strong dissent.  He criticized the majority for adopting “narrow, non-dictionary meanings” for “solicitation” and “working time” that “depart from the decades-old treatment of no-solicitation rules by the [NLRB] and the Courts.”  He would have found the employer’s disciplinary action entirely lawful. 

For labor professionals, the case is important for four reasons:

• When dealing with union discussions, employers must resist the urge to overreach and construe any “union talk” as a form of “solicitation” in an attempt to regulate or prohibit it under a no-solicitation policy.  Not all union-related discussions constitute “solicitation” under the NLRA.  The majority defines “solicitation,” however, more narrowly than the dissent.

• Focusing on the extent to which work is interrupted, however, is troubling.  The Supreme Court has stated that “working time is for work,” a principle that has been upheld for decades.  This case appears to chip away at that idea, by describing the lost working time of one of the employees as only a “few seconds.”

• It could signal a potential departure from established NLRB precedent.  The rules on solicitation are one of the few “bright lines” in an area full of grey.  It will be an unfortunate development if the decision leads to future cases that add uncertainty for labor professionals to manage.

• The decision may make future determinations of what is “solicitation” more difficult for employers and employees.  As Member Miscimarra explained in his dissent, employers’ ability to discipline for violation of no-solicitation rules now appears to depend on inquiries into questions like precisely what was said, whether and what may have been displayed during the exchange, and how much work was “lost, delayed, or deferred” during the exchange.