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Employment Blog

Federal Court Rejects NLRB’s Recently-Adopted Solicitation Standard, Criticizes NLRB’s Reasoning

Authored by Ruder Ware Attorneys
Posted on February 23, 2016
Filed under Employment

If you follow this blog, you may recall my post from November 26, 2014 Labor Unions Have Another Reason to Be Thankful: NLRB Serves Up Holiday Season Gift about the NLRB’s controversial decision in Conagra Foods, Inc., concerning the meaning of “solicitation” for purposes of the National Labor Relations Act.  Although the Conagra Foods, Inc. decision floated under the radar due to other noteworthy decisions around the same time, most management-side labor-relations lawyers—myself included—viewed the decision as part of an insidious attack on the ability of companies to prohibit and/or curb a species of workplace chatter that is disruptive and threatens productivity and security. 

At its core, the Board’s 2014 Conagra Foods, Inc. decision stands for the proposition that an employer could prohibit “solicitation” through a company policy, and discipline in connection with prohibited “solicitation”—which involves a communication during which workers are asked to join a union or support union membership—only when such solicitation is accompanied by the act of physically presenting an authorization/membership card and asking for a signature—a very narrow interpretation of “solicitation.”  The Board also concluded that when otherwise prohibited “solicitation” is very brief in duration—and is not likely to interfere with workplace production—no solicitation occurs.  Recently, the US Appeals Court for the Eighth Circuit [which issues decisions that primarily impact businesses in Minnesota and Iowa, among other states], took issue with the Board’s narrow definition of “solicitation” espoused in Conagra Foods, Inc.—and flatly rejected the Board’s reasoning. 

The Court began its analysis by recognizing that employers have the legal right to create and enforce rules prohibiting union “solicitation” during working hours—within certain technical parameters [i.e., “working hours” is narrowly defined, etc.].  The Court opined that the Board’s definition of “solicitation” advanced through the Conagra Foods, Inc. decision is inappropriate because it “would prevent employers from maintaining production and discipline.”   Finding the Board’s definition of “solicitation,” “patently unreasonable,” the Court opined:

Under  the  Board's construction of the Act, an employee cannot be prohibited under a valid no- solicitation policy from requesting support for union organization from another employee in the most explicit terms, putting a pen in his fellow employee's hand, so long as he directs the solicited party to sign a card only at the end of the shift.  To hold that an employer would violate the Act by censuring such clearly solicitous activity seems to us absurd, straying far afield of what employers, employees, and prior Board decisions have understood solicitation, in its ordinary sense, to entail.

Next, the Court rejected the Board’s categorical conclusion that a very brief encounter involving solicitation of union-membership—in the Board’s words, “a momentary interruption in work, or even a risk of interruption”—cannot rise to the level of prohibited “solicitation.”  The Court found this standard to blur the historically-clear line between permitted “merely union related” conversations and those prohibited conversations during which union membership is solicited.  In the Court’s view, communications that involve solicitation of union membership may be subjected to a blanket prohibition during working time—regardless of the level of workplace disruption involved [whereas other conversations about unions that do not involve solicitation of membership, may only be prohibited if sufficiently disruptive—a case-by-case evaluation].  According to the Court, finding “solicitation” for purposes of the National Labor Relations Act only when a conversation during which solicitation of union membership is also accompanied by presentation of an authorization card and request for a signature, incorrectly does away with an employer’s right to impose a blanket prohibition on communications involving the solicitation of union membership during working hours. 

Although this case does not nullify the applicability of the Board’s 2014 Conagra Foods, Inc. decision in Wisconsin, it certainly provides a much-needed roadmap for the Courts in the event a Wisconsin-based employer’s actions are scrutinized.  This decision is a big win for employers.