Labor & Employment Law Daily NLRB broadens definition of solicitation, overrules precedent, finds employee lawfully disciplined for 3-minute conversation
Wednesday, June 3, 2020

NLRB broadens definition of solicitation, overrules precedent, finds employee lawfully disciplined for 3-minute conversation

By Ronald Miller, J.D.

Solicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation.

After finding an employee was lawfully disciplined for engaging in union solicitation with a coworker who was on working time, the NLRB overruled precedent that redefined the term “solicitation” in a manner inconsistent with established Board law and the purposes of the NLRA. Wal-Mart Stores, Inc., a 2003 ruling, and Conagra Foods, Inc., a 2014 ruling, defined “solicitation” too narrowly, the Board concluded. While the employee had completed her shift, she initiated a conversation with an on-duty security officer about an upcoming election in violation of a solicitation rule which prohibited all solicitations by employees in work areas during work time. Further clarifying its own precedent, the Board explained that the definition of “solicitation” also encompasses the act of encouraging employees to vote for or against union representation. The Board also dismissed allegations the employer committed additional violations of the NLRA arising from its discipline of the employee for prohibited solicitation (Wynn Las Vegas, LLC, May 29, 2020).

The employer operates a Las Vegas hotel and casino. The employee was a table games dealer whose employment was governed by a collective bargaining agreement. Since May 2014, the employer maintained a written solicitation policy, which provided that all solicitation by employees was prohibited in work areas during work time of the employee initiating the solicitation or the employee being solicited.

Union conversation. In February 2015, the employee approached an on-duty security officer after she had finished her working day. The security officer was stationed in the highest traffic area on the employer’s property. After approaching the security officer, the employee began to speak with him regarding an upcoming election involving security officers. The interaction lasted approximately three minutes and numerous guests and other employees walked by them. Many of the guests appeared to need directions, but they were unable to talk to the security officer because he was engaged in a conversation with the employee.

After overhearing a portion of the conversation, another security officer reported the interaction to the employer’s president, who notified the employer’s in-house general counsel about the incident and asked him to investigate. The president noted that this was a sensitive time because of the upcoming election involving security guards.

Investigation. As part of the investigation, the general counsel first reviewed surveillance video, which showed the employee having a one-sided conversation with the security officer. He then spoke with the security officer who reported the incident, asking him what he observed and where the incident had taken place. Next, the security officer involved in the conversation was asked to describe the substance of the conversation. Neither officer was asked about how they were going to vote in the upcoming election.

Finally, the employer met with the employee and a union representative and asked whether she had engaged in a conversation with the security guard. She consistently maintained that she did not recall the incident. Ultimately, the employer issued the employee a first written warning for the conversation.

An administrative law judge found that the employee’s interaction with the on-duty security officer constituted solicitation, reasoning that the lengthy conversation interfered with his duties and was distinguishable from the sort of short, casual pro-union conversations that she had in the past. Consequently, the ALJ determined that the employer lawfully issued the employee a written warning for violating its solicitation policy.

Precedent. Relying on the Board’s decisions in Wal-Mart Stores and Conagra Foods, Inc., the General Counsel contended that the employee’s conversation with the security officer was merely union talk in support of the union in the upcoming election. However, the Board found no merit in his exception. Rather, it concluded that in Wal-Mart Stores and ConAgra, the Board defined “solicitation” too narrowly. In both cases, the Board held that, in order to constitute union solicitation, the solicitor’s conduct must include the contemporaneous tender of a union authorization card.

“Solicitation” defined. Here, the Board determined that this extremely narrow definition of “solicitation” is inconsistent with long-standing Board law establishing that the act of requesting an employee to sign an authorization card constitutes solicitation, even if a card is not presented at the time of the conversation. Accordingly, the Board overruled the Wal-Mart and ConAgra decisions.

In the context of a union campaign, solicitation for a union ordinarily means that someone is asking an employee to join a union by signing a union authorization card. However, solicitation is not limited to this act. The Board held that solicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation. Such conduct constitutes union solicitation because the employee is selling or promoting the services of the union (or urging employees to reject those services). This understanding of solicitation comports with prior Board precedent and with the dictionary definition of the word. Accordingly, defining solicitation to also encompass the act of encouraging employees to vote a particular way in a union election was consistent with the purpose of the employer’s no-solicitation rules, which was to prohibit conduct that interrupts business operations.

Misapplication. The Board found that the decisions in Wal-Mart and ConAgra misapplied precedent by holding that solicitation for a union, although lawfully prohibited during “working time,” is permitted when there is only a “brief” interruption of work. In denying enforcement of the Board majority’s holding in ConAgra, the Eighth Circuit rejected the rationale that solicitation requires the presence of an actual disruption of work. Accordingly, the present Board agreed with the Eighth Circuit that an actual interruption of work should not be a factor in determining whether a no-solicitation policy has been violated. A rule prohibiting solicitation during working time is presumed valid, and employers may lawfully discipline an employee who violates the rule, even if the employee has not interrupted work.

Clarified definition. Going forward, the Board will not require that an authorization card be contemporaneously presented for signature or that a conversation last a certain amount of time in order for an act to be considered union solicitation. Accordingly, where an employee makes statements to a coworker during working time that are intended and understood as an effort to persuade the employee to vote a particular way in a union election, that employee has engaged in solicitation subject to discipline under an employer’s validly enacted and applied no-solicitation policy.

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