NLRB Splits 2-1 on Meaning of ‘Solicitation,' Says Conagra Policy Lawful, Discipline Illegal

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lawrence E. Dubé

Nov. 24 — A food processing company's lawful no-solicitation policy did not permit the company to discipline a production employee who spoke to co-workers about union authorization cards without specifically soliciting their signatures, the National Labor Relations Board decided Nov. 21.

NLRB Chairman Mark Gaston Pearce and Member Nancy J. Schiffer held that Conagra Foods Inc. violated the National Labor Relations Act by issuing a verbal warning to a union supporter who spoke briefly to two other workers on the production floor of an Ohio plant. Janette Haines told her co-workers where she left union cards for them, but she did not engage in “solicitation” in violation of a plant rule, the board majority said.

Member Philip A. Miscimarra dissented from the unfair labor practice finding. Concluding that Haines was following through on a long-running effort to secure authorization cards for United Food and Commercial Workers Local 75, Miscimarra wrote that the employee was lawfully disciplined for breaking the employer's lawful no-solicitation rule.

Talk About Union Cards Occurred During Work Time

According to the decision, Haines asked co-workers Andrea Schipper and Megan Courtaway in September 2012 to sign union authorization cards, and both said they would.

Several days later, Schipper gave the union activist the number of an in-plant locker that Schipper and Courtaway shared. The women agreed Haines would leave cards in the locker, and Schipper and Courtaway would retrieve and sign them.

“Subsequently,” the majority said, “as Haines walked past Courtaway and Schipper on the production floor, she informed them she had placed the cards in their locker.”

Schipper was waiting for the production line to start when Haines went by, but Courtaway stopped a cleaning operation briefly as Haines spoke. Conagra gave Haines a verbal warning after Courtaway told a lead person the subject of the brief conversation.

An NLRB administrative law judge later found that the “conversation lasted a matter of seconds and did not interfere with production.”

Majority Finds Brief Comment Not Solicitation

Citing W.W. Grainger, Inc., 229 N.L.R.B. 161, 95 LRRM 1078 (1977), Pearce and Schiffer said the NLRB has held that “ ‘[s]olicitation' for a union usually means asking someone to join the union by signing his name to an authorization card.” The board has distinguished between presenting an authorization card for signature and “merely providing information” to a co-worker.

Presenting the card prompts the recipient for an immediate response and creates a potential for disruption of an employer's productivity, the board said in Wal-Mart Stores, Inc., 340 N.L.R.B. 637, 173 LRRM 1249 (2003), but Pearce and Schiffer wrote that there is no support “in case law or in logic” for a finding that “merely providing information to coworkers constitutes solicitation.”

The NLRB has distinguished between presenting an authorization card for signature and “merely providing information” to a co-worker, Pearce and Schiffer said. They found that there is no support “in case law or in logic” for a finding that “merely providing information to coworkers constitutes solicitation.”

Citing Wal-Mart, the majority said the NLRA allows employees to make union-related statements like Haines's comment where the communications are so brief they do not interrupt the work of employees. Pearce and Schiffer concluded that Conagra's action against Haines violated Sections 8(a)(1) and 8(a)(3) of the act.

Dissent Argues Lawful Enforcement of Rule

Miscimarra said the board members agreed Conagra had a lawful policy against solicitation during working time, but he warned that “the approach adopted by [his] colleagues will make it impossible for anyone to know in advance whether, where and what type of ‘solicitation' is prohibited under lawful no-solicitation policies.”

The dissenting board member acknowledged that the encounter on the production floor was brief, but he said it clearly occurred during the working time of the employees and applying “basic dictionary definitions” showed that Haines was engaged in solicitation because she was following through on her ongoing effort to secure union cards from Schipper and Courtaway.

Finding Conagra's warning was permissible enforcement of a lawful no-solicitation rule, Miscimarra said the warning did not violate the NLRA.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9r6qfe.