On May 29, 2020, the National Labor Relations Board (“NLRB” or “Board”) issued a decision in Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020) broadening the definition of “solicitation” by overruling its prior decisions in Wal-Mart Stores, 340 NLRB 637 (2003) and ConAgra Foods, Inc., 361 NLRB 944 (2014). Those cases had required that a union authorization card be present in order for a communication to be considered “solicitation.” The Board’s revised standard provides that an act of encouraging employees to vote for or against union representation constitutes solicitation.

Background

A tables game dealer at the Wynn Las Vegas (“Wynn”) approached an on-duty security guard after the employee finished working her last game of the day about an upcoming union election for security officers. During this three-minute exchange, guests and employees walked by, including one guest who approached a different security officer for assistance. As a result of this one-sided conversation and subsequent investigation, the tables game dealer was issued a written warning for violating Wynn’s Solicitation and Distribution policy since the security-officer was on-duty and in a high traffic, guest facing area.

The relevant portions of Wynn’s policy provide that “[a]ll . . . solicitation by employees is prohibited in work areas during the work time of the employee initiating the solicitation or the employee being solicited.” The policy further states that “[s]olicitation is oral communication asking or seeking a person to take some action, such as buying a product or service, contributing to a charity, or joining an organization. It also includes requests for employees to sign union authorization cards or representation petitions and the exchange of such documents for signature.”

The administrative law judge determined that Wynn lawfully issued the employee a written warning since the employee’s conversation with the on-duty security officer constituted union solicitation.

The Decision

In affirming the administrative law judge’s decision, the Board first determined that past Board decisions, particularly Wal-Mart Stores and ConAgra Foods, defined solicitation too narrowly by requiring that the solicitor’s conduct include the contemporaneous tender of a union authorization card.

In Wynn, the Board broadened the definition by stating that solicitation also encompasses the act of encouraging employees to vote for or against union representation since the employee is selling or promoting the services of the union or urging employees to reject those services. The presence of a union authorization card thus is no longer a necessity for a finding of solicitation. The Board explained that this broader definition is aligned with prior Board precedent and the dictionary definition of the word.

The Board also overruled Wal-Mart Stores and ConAgra Foods to the extent that they permitted union solicitation when there is only a “brief” interruption of work. The Board held that interruption of work should not be a factor in determining whether a no-solicitation policy has been violated. The Board noted that Board and court precedent regarding no-solicitation policies is based on the principle that union solicitation is likely to disrupt work; therefore, a rule prohibiting solicitation during working time is presumed valid, and employers may lawfully discipline an employee who violates such a rule, even if the employee has not interrupted work.

Applying the principles established, the Board held that the tables game dealer engaged in prohibited union solicitation in violation of Wynn’s lawful non-solicitation policy since she was encouraging another employee to vote a particular way in a union election during that employee’s working time. In finding that the employee engaged in prohibited solicitation, the Board also noted that it is not determinative whether the employee’s conduct actually interfered with the security officer’s work since the union solicitation occurred during the security officer’s working time.

Takeaway

The Board’s revised definition of “solicitation” significantly expands the nature of union solicitation and organizing activity that employers can prohibit when either the soliciting employee or the solicited employee is on work time since a union authorization card does not need to be present. As a result, employers should review their existing non-solicitation policies to determine whether they may be able to strengthen the policies’ language in compliance with this new standard while ensuring the policies are consistently being enforced.

 

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Putney, Twombly, Hall & Hirson LLP

 

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