Labor Unions Have Another Reason to Be Thankful: NLRB Serves Up Holiday Season Gift

May 6, 2015

On November 21, 2014, the National Labor Relations Board (“Board”) served up a holiday season gift to organized labor—in the form of a new, significantly more “union friendly” view of “solicitation” policies utilized in many non-union workplaces [designed to lawfully limit pro-union solicitation, and other forms of solicitation, which can hamper employee productivity]. The decision is Conagra Foods, Inc., 361 NLRB No. 113 (2014), found here Conagra_Foods_Inc..

At Conagra’s non-union food processing plant, located in Troy, Ohio, Conagra maintained the following solicitation/distribution rule:

In the interest of all associates and the Company, no solicitation or distribution of non-business related material is allowed during work time or in work areas. Solicitation may include solicitation for funds or contributions for organizations from customers, associates, or person from other firms doing business with the Company, baseball pools, raffles, the sale of cosmetics, etc. In addition, trespassing, soliciting or distributing literature by any non-associate on the Company’s property is prohibited.

Although the Board concluded that the above policy was lawful [which is interesting, because the policy language is markedly similar to the solicitation language a Board ALJ recently invalidated in the Mercedes-Benz case: Mercedes-Benz, it determined that Conagra’s decision to discipline an employee, who was “an active and open union supporter,” for violating the policy was illegal. More specifically, the Board was troubled by Conagra’s decision to issue a verbal warning to this employee, when she “merely informed her [two] coworkers,” during an interchange that lasted “no more than a few seconds,” that she would place blank authorization cards [used to voice employee support for union representation] in their workplace lockers as previously agreed—at a time when one coworker was waiting for the production line to start, and the other coworker was actively engaged in work, and temporarily stopped working.

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