NLRB Expands Definition of ‘Solicitation’ in Precedent Altering Decision

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Seyfarth Synopsis: The National Labor Relations Board issued a decision in Wynn Las Vegas, LLC, 369 N.L.R.B. No. 91 (May 29, 2020) that redefines “solicitation” to include any employee activity encouraging other employees to vote for or otherwise support a union.  In doing so, the NLRB overturned precedent that limited “solicitation” to efforts to induce employees to sign union authorization cards.  Applying its newly refined standard, the NLRB upheld the discipline of an employee for having a three-minute discussion on work time to encourage a co-worker to vote in favor of union representation in an upcoming election.  This decision is a potential “game changer” for employers, who may now lawfully enforce non-solicitation policies that cover any activity aiming to drum up union support during work time.

Facts

The Wynn Las Vegas maintained a non-solicitation policy that stated, in relevant part, “solicitation by employees is prohibited in work areas during the work time of the employee initiating the solicitation or the employee being solicited.”  At the time of the activity in question, a labor organization (the Security, Police and Fire Professionals of America) was in the process of attempting to organize Wynn’s security guards, and an NLRB election had been scheduled. 

One day, after finishing her shift as a table games dealer, a Wynn employee approached a security guard who was still on the clock and had a three-minute conversation with him during which she encouraged him to support and vote for the union in the upcoming election.  The conversation was recorded by the casino’s surveillance cameras.  During their conversation, several guests passed by the security guard, many of whom appeared to need directions.  They were apparently unable to talk to the guard because he was engaged in that conversation regarding the union.  The incident was reported to Wynn’s management, who, after conducting an investigation, issued the table games dealer a written warning for violating its non-solicitation policy by soliciting an on-duty employee. 

The Board’s Holding

Before addressing the specific question of whether Wynn lawfully disciplined its employee for violating its non-solicitation policy, it revisited its existing definition of “solicitation.”  After completing a review of its past decisions, the Board held that it had defined solicitation too narrowly under the National Labor Relations Act.  In so doing, the Board found that such a narrow definition of solicitation misapplied the Supreme Court’s balancing test for whether union activity is protected, weighing employees' rights to engage in such activity against the property rights of employers.

The decision directly addressed existing NLRB precedent in which the Board held that to constitute “solicitation,” an employee had to ask a co-worker to sign a union authorization card, even if the employee did not have a card with her at the time.  Here, the NLRB revised that standard and held that “[s]olicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation," finding that "[s]uch conduct constitutes union solicitation because the employee is selling or promoting the services of the union (or urging employees to reject those services)."  All precedent conflicting with this updated standard was expressly overruled by Wynn Las Vegas.

The decision noted that prior cases had misapplied the law by finding that solicitation can only occur when there is a work interruption.  Here, the NLRB found that “[a] requirement that there be a significant interruption, or indeed any interruption, of work to constitute prohibited solicitation interferes with the balance between employees' right to organize and the equally undisputed right of employers to maintain discipline in their establishments.” 

Applying its revised standard for what constitutes solicitation, the NLRB found that Wynn’s issuance of a written warning to its table games dealer for violating its non-solicitation policy was lawful. The NLRB dismissed a separate allegation that Wynn’s policy had been enforced in a discriminatory manner that singled out union activity given that it previously had enforced its non-solicitation policy on only two other occasions: one in which an employee was distributing Avon catalogues, and another in which an employee demanded money from a co-worker in exchange for helping her make up bedding in a guest room.   

Impact on Employers

The NLRB’s revised definition of “solicitation” greatly expands the nature of union solicitation and organizing activity that may be prohibited by employers when either the soliciting employee or the solicited employee is on work time.  Employers should review their existing non-solicitation policies to determine whether they may be able to strengthen the policies’ language in compliance with this new standard.  Where existing policies cover all union solicitation activity on work time and are otherwise enforced in a nondiscriminatory manner, employers may consider stepping up their enforcement efforts in light of this decision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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