The NLRB Redefines What Constitutes “Solicitation,” Thereby Broadening The Definition And Returning to Prior Board Precedent

Kilpatrick Townsend & Stockton LLP
Contact

The NLRB is at it again—with its decision in Wynn Las Vegas, LLC the Board has continued its practice of scaling back decisions of the Obama Board. [i] In Wynn Las Vegas, the Board redefined “solicitation” to comport with prior Board precedent. This decision has the practical effect of broadening the type of conduct that may be considered to have violated a valid non-solicitation policy and warrant discipline.

The primary issue addressed by the Board in Wynn Las Vegas was “whether an employee’s act of encouraging a coworker, who was on working time, to vote for union representation in an upcoming election constituted prohibited union solicitation.” In finding that the employee’s conduct constituted solicitation, the Board overruled precedent from the Obama Board that “redefined the word ‘solicitation’ in a manner inconsistent with established law and the purposes of the [National Labor Relations Act].” Additionally, the Board further clarified that “although solicitation for a union ordinarily means that someone is asking an employee to join a union by signing a union authorization card, the definition of ‘solicitation’ also encompasses the action of encouraging employees to vote for or against union representation.”

The employer in this case, Wynn Las Vegas, maintains a non-solicitation policy that reads, in pertinent part “[a]ll…solicitation by employees is prohibited in work areas during work time of the employee initiating the solicitation.” On February 2, 2015, a table games dealer for the casino finished her shift and approached an on-duty security officer. This security guard was stationed in a priority area and was responsible for assisting guests and providing security. The table games dealer spoke with the security guard for approximately three minutes and, while not explicitly saying “vote for the union” did implicitly encourage union participation with phrases such as “any union is better than no union” and “you guys need to have your own voice.” During this one-sided conversation, numerous guest and employees walked by, but because the security guard was occupied with this conversation, the guests had to approach another security guard who was not speaking with anyone. Although the casino only enforced its non-solicitation policy on two previous occasions (once where an employee left a magazine on a counter and once where an employee demanded $5 from another), the table games dealer was issued a written warning for violating the policy. The employee thereafter filed an unfair labor practice charge with the NLRB and the Board ultimately issued a Complaint alleging that Wynn Las Vegas violated the NLRA by issuing the table games dealer an adverse discipline.

The Administrative Law Judge (ALJ) assigned to the case dismissed the Complaint. According to the ALJ, the conversation constituted union solicitation in that it was distinguishable from “pro-union work talk,” as it was a lengthy conversation that interfered with the security guard’s work duties. Thus, the employer “lawfully issued a written warning for violation of [the casino’s] Solicitation policy.”

In affirming the ALJ’s decision, the Board found that the definition of “solicitation” set forth in Wal-Mart Stores[ii], and ConAgra Foods, Inc.[iii] was too narrow and not aligned with prior Board precedent. Prior to ConAgra and Wal-Mart, the Board’s well settled precedent clearly distinguished between union solicitation and other activities that support a union—“solicitation for a union is not the same thing as talking about a union or whether a union is good or bad.”[iv] Under this lens, solicitation usually meant asking someone to join the union by signing his name on an authorization card.[v] With the decisions in Wal-Mart and ConAgra, the Board, however, took this well-settled precedent to its limits. In Wal-Mart, the Board found that, among other reasons, the employee had not engaged in solicitation because there was no contemporaneous provision of a union authorization card—“an integral part of the solicitation process is the actual presentation of an authorization card to an employee for signature at that time.”[vi] Similarly, in ConAgra, the Board found that even where an employee told another employee that she had placed union authorization cards in her locker she had not engaged in solicitation because no cards were actually presented and the employee did not physically have cards in her possession.[vii] With its recent decision in Wynn Las Vegas, the Board explicitly overruled those portions of Wal-Mart and ConAgra.

As the Board has long emphasized, working time is just that—working time. The Wynn Las Vegas decision ensures that employers have adequate protection in enforcing non-solicitation policies to maximize working time. Prior to Wynn Las Vegas, employers had to walk the fine line of determining whether to discipline employees for engaging in perceived union solicitation while ensuring they did not infringe on employees’ Section 7 rights. Now, there is more clarity – and cover – for employers in determining when they can enforce a valid non-solicitation policy. This decision also serves to instruct employees regarding what activities may be conducted during working time, which based on this decision are very few. Providing this clarity has the dual benefit of maximizing efficiency and minimizing distractions for both employers and employees as it pertains to pursuing their rights to support or oppose union organizing.

Key Takeaways: Prior to the decision in Wynn Las Vegas, in evaluating whether an employee could be disciplined based on a valid non-solicitation policy, the threshold requirements were that (1) a union authorization card be present, and (2) a disruption of work occur. However, under the current standard, regardless of whether there was a disruption of work, an employee has engaged in solicitation if (1) the communication is during the solicited employees working time, and (2) the communication is “intended and understood as an effort to persuade.” While the purpose of non-solicitation policies are to minimize distractions during working time, the Board will not require a finding that work was actually disrupted; it has emphasized that an employer has the right to control working time as it sees fit and that “an actual interruption of work should not be a factor in determining whether a no-solicitation policy has been violated.” In practice, this case provides significant protection for employers because regardless of the length of the communication, any working-time effort to persuade an employee to vote for or against a union provides a basis for employee discipline. Relatedly, this case serves as a cautionary tale to employees—the previously acceptable momentary conversations regarding union support, even those that do not actually disrupt work, can now subject employees to discipline for violating a validly-enacted non-solicitation policy. The Board did not explain what union-related communications do not constitute “solicitation.” However, because of the expansive definition of “solicitation” in Wynn Las Vegas, employees must be careful; if the communication explicitly or implicitly encourages union support or opposition during working time, an employee may be disciplined.

On the Horizon: Through the end of 2019 and the beginning of 2020, with decisions such as Wynn Las Vegas, the Board has shown its clear intention to swing the pendulum back to employers and overrule decisions of the prior administration. As the election in November approaches, and the composition of the Board hangs in the balance, we can expect more pro-employer decisions returning to pre-Obama Board standards.


[i] 369 NLRB No. 91 (2020) (https://apps.nlrb.gov/link/document.aspx/09031d458310f2f2)

[ii] 340 NLRB 637 (2003), enf. denied in relevant part 400 F.3d 1093 (8th Cir. 2005)

[iii] 361 NLRB 944 (2014), enf. denied in relevant part 813 F.3d 1079 (8th Cir. 2016)

[iv] W.W. Grainger, 229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir. 1978).

[v] Int’l Signal & Control Corp., 226 NLRB 661, 665 (1976).

[vi] In Re Wal-Mart Stores, Inc., 340 NLRB 637, 638–39 (2003).

[vii] ConAgra Foods, Inc., 361 NLRB at 945 (2014).

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.

© Kilpatrick Townsend & Stockton LLP | Attorney Advertising

Written by:

Kilpatrick Townsend & Stockton LLP
Contact
more
less

Kilpatrick Townsend & Stockton LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.