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Volume X, Number 187

July 03, 2020

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July 02, 2020

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NLRB Redefines “Solicitation,” Broadening Conduct that may be Considered Unprotected

On May 29, 2020, the NLRB issued an important opinion overruling two decisions in order to define the term “solicitation” in a manner consistent with prior Board decisions and the dictionary definition of the term. Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020).

In defining “solicitation,” the Board held that “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, that employee has engaged in solicitation” and may be disciplined pursuant to an employer’s “validly enacted and applied no-solicitation policy.”

In Wynn Las Vegas, the hotel and casino employer maintained a solicitation policy, which provides that all employee solicitation is “prohibited in work areas during the work time” of the initiating or solicited employee.

After finishing her shift, a table games dealer approached an on-duty security officer stationed at the employer’s highest customer traffic area and proceeded to speak to the officer in a one-sided conversation about the upcoming union election. During this three minute exchange, guests and employees walked by, including one guest who approached a different security officer for assistance because that officer was not talking to anyone.

Another security officer overheard the conversation and reported the incident. After further investigation and interviews, the employer issued the table games dealer a first written warning for violating the employer’s solicitation policy. The Administrative Law Judge found that the interaction “constituted union solicitation” and that the hotel and casino lawfully issued the dealer a written warning for violating its solicitation policy.

The Board, in affirming the judge’s decision, reconsidered the narrow definition of “solicitation” set forth in prior decisions, including Wal-Mart Stores, 340 NLRB 637 (2003), enf. denied in relevant part 400 F.3d 1093 (8th Cir. 2005), and ConAgra Foods, Inc., 361 NLRB 944 (2014), enf. denied in relevant part 813 F.3d 1079 (8th Cir. 2016). The Board previously held that solicitation in the context of a union campaign “usually means asking someone to join the union by signing his name to an authorization card.” The Board in Wal-Mart and ConAgra took this concept a step further, requiring an authorization card to be present in order for the conduct to constitute solicitation.

By overruling the two decisions on this narrow aspect, the Board broadened “solicitation” only so far as to bring the meaning of the term in line with prior Board decisions and the dictionary definition of the term. Subsequently, the Board held that union solicitation also encompasses “the act of encouraging an employee to vote a particular way in a union election.”

Additionally, the Board overruled Wal-Mart and ConAgra to the extent that they permitted union solicitation “when there is a significant interruption of work,” such as “a momentary interruption in work, or even a risk of interruption.” The Board emphasized that “working time is for work,” not to be consumed by disruptions such as union solicitation, which interferes with the employers’ right “to maintain discipline in their establishments.”

In applying these principles and overruling the approaches of Wal-Mart and ConAgra, the Board affirmed the judge’s decision that the table games dealer conducted union solicitation in violation of the hotel and casino’s lawful solicitation policy.

Takeaways

This decision illustrates another pullback of decisions from a prior Board. Almost every employer that maintains written policies has a non-solicitation policy that prohibits solicitation during work time of the person doing the soliciting or the person being solicited. This decision returns to the commonsense definition of solicitation. Whether this decision will have broad impact is another thing. Employees often talk about all manner of things during the course of a workday and allowing “solicitation” of any kind (e.g., the office betting pool, purchase of Girl Scout Cookies, etc.) during work time would mean solicitation for or against a union would have to be permitted.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 155

TRENDING LEGAL ANALYSIS


About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

310-284-5640
Eric D. Novak Labor & Employment Proskauer Rose New Orleans, LA
Associate

Eric Novak is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Eric received his J.D. from Tulane Law School, where he was a recipient of the Jackson-Ryan Pro Bono Advocate Award and a member of the American Inn of Court, Tulane Law Chapter. While in law school, he served as a judicial extern to the Honorable James L. Dennis at the United States Court of Appeals for the Fifth Circuit and the Honorable Sarah S. Vance and the Honorable Nannette Jolivette Brown, both at the United States District Court for the Eastern District of Louisiana.

Prior to law school, Eric served as a U.S. Peace Corps volunteer, teaching English in Azerbaijan.

Related Practices

  • Labor & Employment
  • Employment Litigation & Arbitration
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