• Federal Court Rejects NLRB's Definition of "Solicitation"
  • March 21, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The U.S. Court of Appeals for the 8th Circuit has rejected the National Labor Relations Board’s restrictive definition of “solicitation” of union support.

    Background: Employers may lawfully implement a no-solicitation policy, prohibiting employees from soliciting other employees for any reason (e.g. for funds, causes, and union activity) during working time. As we discussed in a prior E-Update, the NLRB set forth a very restrictive definition of “soliciting” union support as requiring the actual presentation of a union authorization card for signature.

    The Court’s Ruling: On appeal in ConAgra Foods, Inc. v. NLRB, the 8th Circuit overruled the NLRB’s definition of “solicitation.” The 8th Circuit found that NLRB had not consistently defined solicitation to require the presentation of an authorization card in past cases. It also determined that the NLRB’s proposed definition “would be contrary to the Act’s policy of balancing the rights of employers and employees” because it would “tilt the balance toward employees,” by allowing organizers to garner union support during working time and in working areas and by “prevent[ing] employers from maintaining production and discipline.” The 8th Circuit stated that the requirement to present an authorization card was “patently unreasonable,” as it would permit explicit requests for union support as long as the union member did not have an authorization card. This, the 8th Circuit found, strayed from the “ordinary sense” of solicitation.

    The NLRB also argued that the brief duration of the encounter - the employee told her fellow employees that she had placed the cards in their lockers - also precluded a finding of solicitation because it was not disruptive to the work. The 8th Circuit rejected this argument as well, finding that it could undermine “a long-understood distinction” between union related conversations, which may only be prohibited during working time if they are disruptive, and union solicitation discussions, which may be prohibited regardless of disruption.

    Significance of the Case: Fortunately for employers, the 8th Circuit has brought the rule of reason back to the definition of “solicitation” of union support, and reined in - albeit temporarily, to be sure - the pro-employee NLRB. As the 8th Circuit stated, “neither the presentation of a card for signature at the time nor the duration of the conversation are determinative” of whether a statement constitutes solicitation of union support.