Employers have long been allowed to ban employee solicitations of union support in work areas on work time, but they cannot ban general discussion of unions or protected activity. The definition of what constitutes a "solicitation" is therefore crucial and has been the subject of differing opinions by the National Labor Relations Board (NLRB).

Now, in welcome news to employers, the NLRB, in Wynn Las Vegas, LLC, returned to a more expansive definition of the types of union "solicitations" that employers can ban in the workplace during work time, overturning the Wal-Mart Stores and ConAgra Foods, Inc., decisions from 2003 and 2014.

Case Background

The issue in Wynn-Las Vegas, LLC, was whether a casino violated an off-duty employee's NLRA rights by enforcing its non-solicitation policy and disciplining the off-duty employee for encouraging an on-duty coworker to vote in favor of union representation. The Board held that the employer did not violate the NLRA by enforcing its policy because the actions of the off-duty employee were a "solicitation" that violated the employer's policy.

In Board decisions Wal-Mart and ConAgra, the NLRB narrowly defined "solicitation" as (1) an affirmative request to sign a union authorization card, coupled with (2) a substantial interruption in work. Absent these criteria, an employer could not impose discipline without violating the employee's rights to engage in protected activity under the Act.

In Wynn Las Vegas, LLC, the first requirement was absent. Thus, under Wal-Mart and ConAgra, the communication at issue would not have qualified as a "solicitation," and the casino's decision to discipline the employee would have violated the employee's statutory rights.

NLRB Examines Definitions of "Solicitation" and "Substantial Interruption" 

Fortunately for employers, the Board concluded that the definition of "solicitation" used in the Wal-Mart and ConAgra decisions was too narrow and unsupported by precedent. As employers have argued for years, not all "solicitations" include a request to sign an authorization card.

The Board cited U.S. Supreme Court case law for the proposition that in the context of a union campaign, "'[s]olicitation' for a union usually [but not necessarily] means asking someone to join the union by signing his name to an authorization card." Indeed, said the Board, there is nothing talismanic about a request to sign a union authorization card in this context. Selling or promoting the services of a union equally encourages employees to vote for union representation. Thus, the Board concluded, a "'solicitation' … also encompasses the act of encouraging employees to vote for or against union representation."

Turning to the second Wal-mart/ConAgra criteria—substantial interruption in work—the Board stated that "employer[s] [are] entitled to insist that employees work during working time and refrain from conduct that tends to interfere with their own work or the work of others." Because any "solicitation" is likely to disrupt work, the Board declined to require "a significant interruption, or indeed any interruption, of work" for the communication to constitute a prohibited "solicitation."

Having overturned the narrower definition of "solicitation" in Wal-Mart and ConAgra, the NLRB looked to the specific communication at issue and found that the off-duty employee engaged in prohibited union solicitation because she "encourage[ed] another employee to vote a particular way in a union election during that employee's working time." Imposing discipline for this conduct was consistent with the purpose of the casino's non-solicitation policy—which was to foster "a productive . . . work environment, as well as to minimize the potential of any disruption to the [Casino's] guests." The Board thus found no violation of the Act.

Impact of the Board's Decision 

Wynn Las Vegas, LLC, is good news for employers. The NLRB will no longer require that "solicitation" be limited to situations where an authorization card is contemporaneously presented for signature as part of encouraging an employee to vote for union representation or that a conversation last a certain amount of time to trigger an employer's prohibitions against "solicitations," thus opening the doors to employers to more broadly enforce anti-solicitation policies.

If Wynn Las Vegas, LLC, survives a likely appeal, it may also prove to be an important tool in an employer's toolbox for maintaining workplace discipline during union organizing drives. As a starting point, Wynn Las Vegas, LLC, does not alter an employer's protected speech under Section 8(c). Employers remain free to express their opinions about union representation during union representation campaigns.

Further, under Wynn Las Vegas, LLC, any discussion that "encourage[s] another employee to vote a particular way in a union election during that employee's working time" could subject the participants to lawful discipline. Wynn Las Vegas, LLC, thus compels union supporters to limit their pro-union activity to non-working time or risk discipline.

Crafting Anti-Solicitation Policies to Avoid Perceived Bias

Enforcement of no-solicitation policies is a two-way street, however. Under Wynn Las Vegas, LLC, the prohibited act is encouraging another employee during work time to vote in a particular way, not necessarily to vote in favor of a union. Encouragement to vote against union representation is thus treated the same as encouragement to vote for union representation.

Employers will thus want to weigh enforcement carefully as it may also limit union detractors from encouraging others during work time to vote "no" to union representation. Otherwise, selective enforcement of anti-solicitation policies may expose employers to charges of harboring anti-union animus.

To avoid unfair labor practice challenges, employers should craft neutral anti-solicitation policies and enforce those policies against other kinds of "solicitations." In Wynn Las Vegas, LLC, for example, the casino maintained a facially neutral policy, which read:

All . . . solicitation by employees is prohibited in work areas during the work time of the employee initiating the solicitation or the employee being solicited.
…
Solicitation is oral communication asking or seeking a person to take some action, such as buying a product or service, contributing to a charity, or joining an organization ….

Because the casino enforced its policy against non-union solicitations as well as union solicitations, the casino was sufficiently insulated from a claim that it harbored anti-union animus.

In summary:

• The NLRB significantly expanded the range of prohibited "solicitations," allowing employers to discipline employees who, during work time, encourage others to vote in favor union representation;
• Employers no longer need to prove any such "solicitation" included a request to sign a union authorization card, nor do they need to establish that the solicitation resulted in a substantial interruption in work before imposing discipline; and
• To take full advantage of Wynn Las Vegas, LLC, however, employers must be able to show even-handed enforcement of its anti-solicitation policy. This means treating all "solicitations" by employees during work time the same.

[View source.]