Last Friday, a three-judge panel for the Eighth Circuit Court of Appeals ruled in ConAgra Foods v. NLRB, case number 14-3771 (decision), that ConAgra Foods Inc. did not violate federal labor law when it disciplined a worker for soliciting union membership at the company’s Slim Jims manufacturing plant in Ohio.  The Court reversed a 2014 NLRB decision that the employer violated the NLRA when it reprimanded an employee for asking coworkers, while working, to return signed union cards.

In August 2011, the Union began a drive to organize workers at ConAgra’s Slim Jims manufacturing plant in Troy, Ohio.

In April 2012, ConAgra posted a letter on a bulletin board in the plant that read, in part:

We also wish to remind employees that discussions about unions are covered by our Company’s Solicitation policy. That policy says that solicitation for or against unions or other organizations by employees must be limited to non-working times. Distribution of materials is not permitted during working time or in work areas at any time.

Also in 2012, ConAgra employee Janette Haines gave three coworkers union authorization cards to sign. When she did not receive back signed cards, Haines approached her coworkers again while they were on duty working.  The workers reported Haines to management, who issued her a verbal warning, memorialized by a notice of corrective action.  In response to the warning, the Union filed a charge against ConAgra with the Board, alleging ConAgra violated § 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1), (3), by censuring Haines, and further alleged that the posted letter chilled union activity and so also violated § 8(a).

The ALJ initially found that the warning and the posted letter violated the Act, and ConAgra filed exceptions to the ALJ’s findings and conclusions.  In its 2014 decision, the NLRB affirmed the ALJ’s rulings, finding that Haines was only talking about the cards, and wasn’t actually asking the employees to sign cards during working time, and her actions therefore did not amount to solicitation.

The Eight Circuit panel disagreed, finding the employee’s activity was part of an overall, concerted series of interactions designed to acquire support for union organization, which violated ConAgra’s policy against solicitation during work hours and in working areas.  Accordingly, ConAgra could legally reprimand her for soliciting during work hours.

The three-judge panel unanimously rejected the test for solicitation the NLRB had applied, which turned on whether the worker presented a union authorization card for signature. The 8th Circuit found that adopting such a standard would throw off the balance between the rights of workers and employers under the NLRA, which allows the latter to prohibit workplace solicitation.

The panel did, however, affirm the NLRB’s finding that ConAgra’s posted letter was overly broad, confusing and misleading about employee rights.  ConAgra’s Solicitation Policy provides that employees may not solicit union support or distribute union-related materials during working time or in work areas. “Working time” and “work areas” include times and areas where employees are expected to be working; they do not include, for example, employee-break times, break rooms, restrooms, parking lots, or hallways. The policy does not prohibit, at any time or place, discussions about unions that do not amount to solicitation. The parties did not dispute that this policy was lawful.

However, notwithstanding the policy, the judges said the structure of the posted letter reminding employees of the policy created the potential for confusion, inviting the reader to equate “discussions about unions” with solicitation. The Panel found that employees not familiar with the fine legal distinctions between these terms would reasonably tend to read the letter as a prohibition of any discussion about unions during working time. Accordingly, the panel affirmed the Board’s ruling that the posting was overly broad.

Takeaways for Employers

  1. Employers can maintain a non-solicitation policy prohibiting employees from soliciting for or against unions during working time.
  2. Employers may discipline employees for violating a clearly-drafted solicitation policy if they solicit during on-duty work times.
  3. The Board continues to closely scrutinize employer workplace policies.  Accordingly, Employers should carefully examine any policies or postings for vagueness or confusion that may lead an employee to believe the may not solicit during off-duty times or in non-work areas.