Are You Soliciting Me? The NLRB Defines “Solicitation”

Authored by Robert S. Seigel

Dec 11, 2014

Employers who wish to remain union-free have long relied upon so-called “no-solicitation” rules as a means to restrict employees from discussing union organizing while at work. As a general proposition, the National Labor Relations Act (“NLRA”) gives employees the right to solicit other employees’ support for a union on “non-working time.” In a recent decision, the National Labor Relations Board (“NLRB”) signaled its intention to interpret the term “solicitation” narrowly, thereby creating a hardship for employers attempting to restrict “union talk” in the workplace.

In a case involving ConAgra Foods, Inc. (09-CA-089532, et al.; 361 NLRB No. 113), the NLRB emphasized that the term “solicitation” in the context of workplace discussions about unions should be narrowly defined as asking someone to join a union by asking them to sign an authorization card. Thus, in the NLRB’s view, an employee does not engage in “solicitation” by merely asking a fellow employee to attend a union meeting; by discussing the merits of bringing in a union; or even by requesting the fellow employee’s general support of a union. To constitute a “solicitation” the initiating employee must ask the other employee to sign an authorization card for the union or otherwise to join the union.

The NLRB’s endorsement of this narrow definition of the term “solicitation” has profound consequences for many employers. The decision affords employee union organizers great latitude to enlist the support of fellow employees in their organizing campaign during working time. So long as the initiating employee does not ask fellow employees to sign a card or join the union, he or she can extoll the virtues of unionizing during working time without running afoul of the restrictions imposed by a non-solicitation rule. Moreover, to the extent that employers mistakenly believe the adage that “working time is for work” and that “union talk” must happen outside of working time, the employer may effectively expand the scope of the no-solicitation rule to an extent that the NLRB would consider the rule to violate the NLRA in practice if not in fact.

The ConAgra decision leaves employers with limited options for restricting “union talk” in the workplace even during working time. Conceptually, an employer could still ban all non-work-related talk during working time if a substantial business justification exists for the ban. However, even if such a justification could be established, enforcement of a “no-talking” rule would be virtually impossible. It would certainly adversely affect employee morale. Other alternatives may exist for a particular employer but these alternatives are fact-specific and best explored on an individual employer basis.

The attorneys at The Lowenbaum Partnership are available to assist you in navigating this complex area of the law. If you have any questions about no-solicitation policies or any other labor or employment policy, please do not hesitate to contact Robert S. Seigel, R. Michael Lowenbaum, Corey L. Franklin, or David P. Frenzia.

Page 1 of 11