NLRB Redefines Solicitation Broadening What May Be Considered Unprotected Activity

On May 29, 2020, the National Labor Relations Board issued a decision in Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020) broadening the definition of “solicitation.” The Board overruled its prior decisions in Wal-Mart Stores, 340 NLRB 637 (2003) and ConAgra Foods, Inc., 361 NLRB 944 (2014), which, together, required that a union authorization card be present in order for a communication to be considered “solicitation.”

The recent decision in Wynn Las Vegas held that an employee engages in solicitation “where an employee makes statements to a coworker during working time that are intended and understood as an effort to persuade the employee to vote a particular way in a union election.” Thus, an employee may be subject to discipline based on a “validly enacted and applied no-solicitation policy” for engaging in any such solicitation during working time.

The decision marks the latest in a series of decisions overturning previous Board precedent.

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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