Talking about a union during work time in a work area cannot be prohibited, says the National Labor Relations Board, unless all non-work talk also is prohibited.  What does that do to an employer's otherwise valid no-solicitation rule?  Where is the line between talking about a union (which realistically cannot be prohibited) and soliciting on behalf of or against a union during work time in work places (which can be prohibited)?  

The line is probably not where you think it is.

Boeing's struggles with the Board and the International Association of Machinists & Aerospace Workers ("IAM") in connection with its South Carolina facility has rubbed up that issue and raises a red flag.  In that case, an active employee union organizer spent time in non-work areas during non-work time seeking to convince his co-employees to support the union and trying to get union authorization cards signed. After the shift began and the employee was supposed to be working, the employee continued his discussions in favor of the union with other employees.  Boeing's supervisor met with the organizer and reminded him that he could not talk about or distribute fliers about the union during work time in a work area.  The employee was directed to Boeing's presumptively valid no-solicitation/no distribution rule.  The IAM filed an unfair labor practice charge, alleging that Boeing violated the law by banning discussions about union-related subjects while permitting other non-work talk (e.g, sports, weather, movies).  The Regional office of the Board filed a complaint and an administrative law judge agreed.  Boeing did not appeal.

The principle is not new and the ALJ cites several cases that were decided prior to the current Obama Board.  However, the application of the principle to real-life conduct in the workplace is murky at best. What is clear is that unions are more likely to raise the issue and the Regions are more likely to issue complaints alleging that the enforcement of a no-solicitation policy by a supervisor was actually prohibiting talk rather than solicitations.

Defenses based on an employer rule against discussing controversial issues (e.g., politics, religion, abortion, unions) because of a concern over abusive conduct arising out of such discussions have been unsuccessful for lack of proof that such talk, if fact, produced such unwanted behavior.  

The line between "talk" and "solicitation" is hard to draw and asks a lot of supervisors.  An invitation to a union meeting has been held to be just "talk," while, in pre-Obama Board cases, asking an employee to sign an authorization card, even where the card was not physically present during the discussion, has been  held to be solicitation.  It is questionable whether the Obama Board would go so far.  

Bottom line:  your supervisors must be trained in the differences between "talk," which cannot be prohibited unless all non-work discussions are prohibited (unrealistic), and "solicitation," which would violate a lawful no-solicitation rule.  If an employee is merely expressing an opinion about unions as good or bad, the chances are that the talk cannot be prohibited.  However, if the employee is seeking an immediate response from the listener ("sign a card"), the likelihood is that the employee is soliciting.  The space between these two extremes is great and many shades of grey.  

It is safe to say, the current Board will draw the line in the favor of limiting the enforcement of no-solicitation rules.