Employment Law Daily Employer lawfully censured union supporter for soliciting authorization cards on production floor
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Tuesday, February 23, 2016

Employer lawfully censured union supporter for soliciting authorization cards on production floor

By Ronald Miller, J.D. An employer lawfully censured a union supporter following a brief conversation in which she discussed the later signing of union authorization cards by coworkers, ruled the Eighth Circuit, notwithstanding that the conversation was not disruptive. Moreover, the appeals court declined to summarily enforce a Board order entering default judgment on claims arising from the employer’s conduct that had been subject to a settlement agreement with a union. However, the court found that Board’s finding that the employer violated the NLRA by posting a letter containing an overbroad no-solicitation rule was supported by substantial evidence (ConAgra Foods, Inc. v. NLRB, February 19, 2016, Beam, A.). Settlement agreement. The employer maintained a policy that employees may not solicit union support or distribute union-related materials during working time or in work areas. The policy does not prohibit, at any time or place, discussions about unions that do not amount to solicitation, and so was not legally disputed. In August 2011, the union began an organizing campaign among workers at an Ohio plant. The employer allegedly removed union literature from employee break rooms and prohibited discussion of unions during working times and in working areas. Ultimately, the employer and union entered into a settlement agreement. The agreement provided that if the employer did not comply with its terms, the union would bring charges based on the 2011 conduct and the employer would not challenge those allegations. In April 2012, the employer posted a letter on a plant bulletin board that reminded employees of the no-solicitation and no-distribution policy. In September, an incident occurred between a union adherent and two coworkers regarding the signing of union authorization cards. The parties had radically different versions of the events. Nevertheless, it was undisputed that the encounter on the production floor occurred during working time and in a work area. The conversation was very brief. Afterward, the coworkers reported the conversation to management. About a week later, the union adherent received a verbal warning. In response to the warning, the union filed a charge against the employer with the NLRB. Charges. That charge was consolidated with an earlier filed charge. The General Counsel also alleged that the posted letter chilled union activity. An administrative law judge found that the warning and posted letter violated Section 8(a)(1) of the NLRA. Additionally, the General Counsel moved for default judgment on charges based on the 2011 conduct because the violations violated the terms of the settlement agreement. A divided three-member panel of the Board concluded the warning was unlawful because the union adherent did not engage in solicitation. It also concluded the posted letter violated the Act because employees would reasonably interpret the letter as prohibiting protected conduct. Finally, the Board granted default judgment on the 2011 charges on the ground that the warning violated the terms of the settlement agreement. The employer petitioned for review, and the Board cross-petitioned for enforcement. Issues for review. The issues for review were whether the employer acted unlawfully when it censured the union adherent and when it posted the letter explaining its no-solicitation policy, and if so whether these violations provided a basis for default judgment under the settlement agreement. As an initial matter, the Eighth Circuit adopted the NLRB’s findings of fact in accord with the testimony of the union adherent. Although there was contrary evidence supporting the testimony of the two coworkers, in ascertaining substantiality of the evidence, the appeals court could not displace the Board’s choice between two fairly conflicting views, even though it would justifiably have made a different choice had the matter been before the court de novo. Presentation of authorization card. Still, the question remained whether the employer violated the NLRA when it censured the union adherent. That determination turned on whether she engaged in activity protected under the Act. If she was soliciting union support during working time her actions were not protected. Here, the Eighth Circuit concluded that the Board’s novel construction of the Act—requiring the presentation of an authorization card at the time of solicitation—was unreasonable, contrary to the policies of the Act, and therefore an incorrect application of the law. First, the appeals court rejected the Board’s holding that the solicitation of union membership must be accompanied by the physical presence of an authorization card presented for signature. It found that the Board has not “consistently held” that the presentation of an authorization card for signature at the time of solicitation is required. Second, a categorical rule such as this would be contrary to the Act’s policy of balancing the rights of employers and employees—tilting the balance towards employees. Moreover, it would prevent employers from maintaining production and discipline, and increase the likelihood of disruptions. Finally, the appeals court concluded that the requirement that an authorization card be presented for signature at the time of the solicitation is patently unreasonable. Brief encounter. Further, the appeals court rejected the Board’s contention that the brief duration of the encounter, and the fact that it was not disruptive, precluded a finding that the union adherent solicited coworkers. The court noted that the Board’s analysis risked upending a long-understood distinction between those conversations that are merely union related and those that solicit union membership. It pointed out that when a discussion solicits union support it may be subject to a blanket prohibition by an employer during working time. To define solicitation as only those statements that are sufficiently disruptive because an authorization card is presented removes this distinction. Statement constituted solicitation. Next, the appeals court examined whether the union adherent’s statement constituted solicitation of union membership. Reviewing the Board’s definition of “solicitation” as laid out in W.W. Grainger, Inc., the court noted that nothing in the definition required that an employee utter an express question or command to solicit union membership. Rather, a concrete effort to obtain a signature on an authorization card is sufficient. Here, the court determined that there was not substantial evidence supporting a finding that the union adherent did not engage in solicitation. Thus, the court reversed the Board’s conclusion that the employer violated the Act when it censured the employee for violating its no-solicitation policy. Posted letter. Next, the Eighth Circuit looked to the Board’s conclusion that the employer violated the Act by posting an overbroad no-solicitation rule. The Board found the letter would be construed by employees as prohibiting any discussion of unions during working time, including discussions protected under the Act. In this instance, the court found the Board’s finding supported by substantial evidence. Default judgment. Finally, the appeals court declined to summarily enforce an order entering default judgment on claims arising from the employer’s conduct. Here, the Board declined to address the employer’s argument that the posted-letter violation would not support the granting of default judgment. Because the court declined to enforce the Board’s order as to the warning, it refrained from enforcing the default judgment.

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