The National Labor Relations Board recently decided that discipline of an employee for violation of the employer’s nonsolicitation policy was unlawful, even though the employee engaged in union-related discussion and the discussion prompted another employee to stop working on the production floor during work time. While the NLRB’s decision appears to construe the term solicitation so narrowly that an employer’s nonsolicitation policy is rendered ineffective, an employer can still enforce its nonsolicitation policy if it applies the policy in accordance with the NLRB’s definition of solicitation and in a nondiscriminatory way. 

Here is the NLRB’s version of the facts in the ConAgra Foods Inc. matter: Janette Haines, an active and open union supporter, met with two of her co-workers in the bathroom during a break and asked them if they would sign union authorization cards. The co-workers agreed and gave Haines their locker number so Haines could put the authorization cards inside. Then, during work hours, Haines told the co-workers that she put the authorization cards in their locker. At the time, one of the co-workers was waiting for the production line to start; the other co-worker stopped cleaning, momentarily, while Haines spoke to her. Haines' co-worker reported the exchange, which only lasted a few seconds, to the leadperson. ConAgra issued Haines a verbal warning for violating its no-solicitation policy. 

Despite the fact that Haines engaged in union-related chat during work time, the NLRB found that her communication with her co-workers was not solicitation. The NLRB focused on the fact that Haines did not present her co-workers with authorization cards during work time, did not ask her co-workers to sign the authorization cards during work time and did not otherwise ask her co-workers to join the union during work time. Accordingly, the NLRB concluded that Haines did not violated ConAgra’s nonsolicitation policy and ConAgra’s discipline of Haines under the policy was pretext for discrimination. 

In addition to the speech in which Haines engaged, the NLRB provided the following examples of employee speech that are not solicitation:

  • stating employees would like co-workers to consider signing authorization card where no card tendered at the time;
  • asking a co-worker to attend union meeting; and
  • asking a co-worker if she had an authorization card.

In essence, the NLRB has drawn a bright line that defines solicitation as asking someone to join the union by signing an authorization card at that time. Any other conduct is subject to the NLRB’s interpretation of what is and what is not solicitation. 

To avoid running afoul of the NLRB’s narrow view of the term solicitation, an employer should take the following steps when enforcing its nonsolicitation policy with regard to union activities. 

First, determine whether the communication at issue constitutes solicitation in accordance with the NLRB’s definition of solicitation. In other words, is the employee actively requesting that a co-worker join a union or is the employee merely discussing union activity? The former is probably solicitation; the latter is probably not solicitation. 

Second, determine whether, during work hours, the employee presented a co-worker with an authorization card or engaged in other conduct requesting that a co-worker join a union. Under the ConAgra decision, union-related speech alone is not sufficient to establish that an employee engaged in impermissible solicitation. The speech must be accompanied by conduct demonstrating that the employee is seeking to solicit another employee for union membership. 

In the ConAgra matter, the NLRB found that presentation of authorization cards is conduct sufficient to elevate an employee’s union speech to solicitation. Although the NLRB focused on the presentation of authorization cards in the ConAgra opinion, other conduct could rise to the level of solicitation, as defined by the NLRB. The NLRB has consistently held that “’[s]olicitation for a union usually means asking someone to join the union by signing his name to an authorization card’” at that time. The NLRB explained that “drawing the ‘solicitation’ line at the presentation of a card for signature makes sense because it is that act which ‘prompts an immediate response from the individual or individuals being solicited and therefore presents a greater potential for interference with employer productivity if the employees are supposed to be working.” 

For example, if an employee is asking co-workers to sign up for the union or sign a petition for the formation of a union during work hours, such conduct would probably be considered impermissible solicitation because it constitutes union communication accompanied by a request to sign a document — an action that necessarily disrupts employee productivity. Additionally, employers should note that solicitation is not necessarily limited to the signing of paper documents. If, during work hours, an employee is emailing, sending text messages or using social media to drum up support for and ask employees to sign up for the union, such communication and conduct arguably fits within the NLRB’s narrow definition of solicitation. 

Third, determine how much work time the employee wasted when engaging in solicitation. In the ConAgra matter, the NLRB noted that the union-related communication that occurred during work hours only lasted a few seconds. If an employer is faced with a close call on whether certain conduct is solicitation, conduct that takes up a substantial amount of work time might be enough to push the speech and conduct into the impermissible solicitation category. As noted above, the NLRB acknowledges that the primary goal of a nonsolicitation policy is to prevent interference with employer productivity. Accordingly, if union-related speech and conduct shaves minutes off of employee work time, such activity arguably runs afoul of the employer’s nonsolicitation policy, even under the NLRB’s narrow definition of solicitation. 

Fourth, determine whether your application of your nonsolicitation policy is fair. When applying a nonsolicitation policy to union talk and conduct, make sure that you use the same approach to other forms of solicitation. For example, if, during work time, an employee is selling Girl Scout cookies and presenting co-workers with order forms to complete, such communication and conduct must be addressed under the nonsolicitation policy the same way union-related communication and conduct is addressed, no matter how much you and everyone else at work loves Samoas, Thin Mints and Tagalongs. Remember that it is unlawful to discipline an employee for speech and conduct simply because you do not agree with the content. 

So, what’s the takeaway? Be careful how you apply your nonsolicitation policy. Do not assume that an employee has violated the policy because the employee engaged in union-related discussion during work time. Consider whether the communication at issue was actual solicitation, rather than merely union-related talk. Determine whether the communication is accompanied by conduct, such as the presentation of authorization cards, that necessarily requires employees to stop working during work hours. Then, take into account how much work time the employee spends engaging in solicitation and thereby decreasing productivity. If the communication is not solicitation, under the NLRB’s definition, consider whether the employee has violated any other policy (e.g., policy prohibiting employee from spending work time on personal matters). Finally, make sure you are applying all of your policies fairly and not only to employees who are actively recruiting for the union.

Republished with permission. This article first appeared in Employment Law360 on January 5, 2015.