As many Human Resource professionals know, union organizing has been picking up steam, following the recent implementation of “Quickie-Election” rules, “Mini-Bargaining Units” and other pro-union rulings by the National Labor Relations Board. Although unions have adopted modern methods of communicating their marketing pitches (such as Facebook campaigns, Twitter messages, text messaging, e-mail blasts), as well as more traditional methods (such as public rallies and mass postal mailings), the most efficient method of convincing workers to unionize remains the face-to-face conversation. And union organizers understand that the best way to initiate a face-to-face conversation is at work.

Of course, employers have long opposed workplace solicitations due to the distraction and disruption it causes in the production cycle. In response to those objections, the NLRB and federal courts many years ago developed rules which balanced the unions’ desire for workplace communications and the employers’ desire for unimpeded production. Under those long-accepted rules, employers are allowed to adopt non-solicitation policies which prohibit employees from soliciting other employees to unionize during the work time of either employee and are allowed to adopt non-distribution policies which prohibit employees or others from distributing written materials promoting unionization during worktime or in work areas. Employers are also permitted to adopt policies to restrict other union-related conversations during working hours, but only to the extent that such conversations unduly disrupt operations, and only if the employer enforces those same policies against other types of conversations which have a disruptive effect on operations. (For example, if employees are standing around discussing the Super Bowl advertisements and causing a slowdown in the assembly line but are not disciplined, then the employer cannot discipline any union-related conversations (other than direct solicitations to unionize) even if those conversations cause a slowdown in the assembly line.) In addition, in order to enforce their rights to restrict workplace solicitations or distributions, the employer must have adopted and disseminated a clear, compliant policy, and that policy must have been disseminated before there are signs of a union organizing campaign.

However, the NLRB has recently attempted to whittle away these long-protected employer rights. A recent decision issued by the 8th Circuit Court of Appeals (ConAgra v. NLRB), decided on February 19, 2016, rejected the NLRB’s newest attempt to undermine the non-solicitation rule and provides an important lesson concerning the need to carefully craft and administer non-solicitation and non-distribution policies.

Facts of Case

The United Food and Commercial Workers Union had been attempting to organize workers at ConAgra’s “Slim Jim’s” manufacturing plant in Troy, Ohio for many years. Several of the prior unsuccessful organizing efforts had resulted in unfair labor practice charges against ConAgra. It became a bitter and long-running battle between the plant, who sought to remain non-union, and employee organizers seeking to persuade a majority of their co-workers to agree to unionize. In this context, the Company’s non-solicitation policy came to play an increasingly key role.

In 2012, the UFCW began another organizing campaign at the plant. In response, plant management posted the following notice on the employee bulletin board, reminding workers of the non-solicitation policy (which had been adopted before the organizing campaign):

“We also wish to remind employees that discussions about unions are covered by our Company’s Solicitation policy. That policy says that solicitation for or against unions or other organizations by employees must be limited to non‑working times. Distribution of materials is not permitted during working time or in work areas at any time.”

During the organizing effort, and after the notice had been posted, a janitorial employee who was promoting the unionization effort walked past two production employees during work time and informed them that she had placed union authorization cards in their lockers as they had earlier requested her to do during a bathroom break. [The exact statements between the janitorial employee and the other two employees were disputed - the two employees testified that the janitorial employee had never spoken with them at any bathroom break, and that she had encouraged them to sign the union authorization cards, as well as mentioning the lockers.]

After the conversation was reported to a supervisor, the janitorial employee was disciplined for violating the no-solicitation rule. The UFCW responded by filing unfair labor practice charges, claiming that the discipline was unlawful because the employee was not engaged in “solicitation” at the time of the worktime conversation and claiming that the Company’s bulletin board notice unlawfully restricted employees from union activities.

The matter was tried to an Administrative Law Judge, who ruled against the Company. ConAgra appealed to the National Labor Relations Board. The three-member Board issued a divided opinion in favor of the union and against ConAgra. The Board rejected the testimony of the two non-union organizing employees and credited only the testimony of the janitorial employee. The Board held that her conversation with the two non-union organizing employees did not qualify as “solicitation” because she did not actually present a union authorization card at the time of the conversation and because the conversation was too brief. The Board also held that the bulletin board notice was unlawful because it implied that “any” union discussion was subject to the non-solicitation rule, suggesting that all union discussions were prohibited regardless of whether they disrupted operations, not just solicitation efforts. ConAgra then appealed the NLRB decision to the federal 8th Circuit Court of Appeals.

February 19, 2016 Appeal Decision

The 8th Circuit reversed that part of the NLRB decision which had attempted to create a new non-solicitation rule. It held that ConAgra’s discipline of the janitorial employee was proper. It re-affirmed the prior case precedent, which held that there does not need to be actual union authorization cards present during the working hour conversation for the conversation to violate a non-solicitation rule. If the conversation involves solicitation, it violates a properly posted policy. Likewise, it does not matter if the solicitation is brief and does not disrupt, or only minimally disrupts, operations. All union solicitations during work hours can be restricted.

However, the 8th Circuit upheld the NLRB’s determination that the bulletin board posting was unlawful. The Court held that employees could easily be confused by the language of the posting and may mistakenly believe that all union discussions were prohibited during working time.

Lessons Learned From ConAgra

The ConAgra case provides several important reminders to HR professionals:

  • Employers should adopt very clear non-solicitation/non-distribution policies, should have those policies reviewed by legal counsel and should incorporate those policies into their employee manuals prior to any indication of a union organizing effort.
  • Policies restricting union discussions (other than solicitations) during work hours must not prohibit such discussions unless they cause a disruption of work and must also restrict non‑union conversations that result in disruption of work in a consistent manner.
  • Managers and supervisors should be trained on the distinctions between lawful and unlawful policies and practices regarding union solicitations and union-related conversations, and the need for consistent enforcement, and must be able to recognize what actions can be disciplined and what actions cannot be disciplined.
  • Employers should exercise extreme care in any messages to the workforce, postings on bulletin boards, or other employees communications during an organizing campaign as even the most minor ambiguity could give rise to a very expensive legal charge and have long-lasting implications to the employer’s ability to avoid unionization.
  • Employers must consistently enforce non-solicitation and non-distribution policies. Lax enforcement will negate the ability to enforce the policies, which may clear the way for open solicitations on production floors, a worst-case scenario for an employer.

Bottom Line

Human Resource professionals in non-union work environments must be extremely vigilant if they hope to maintain non-union status. Once a union organizing effort begins, it is often too late to adopt policies, conduct training, and/or establish effective methods to avoid unionization. The beginning of the year is a great time to review employee handbooks and other workplace policies to ensure that lawful and effective policies are in place and have been reviewed for legal compliance and to conduct supervisor and manager training on those policies.

Additional information on the ConAgra decision, non-solicitation/non-distribution policies, or supervisor/manager training can be obtained from the LCOJ Employment Law Team.

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Written By:
Attorney Gregory A. Grobe

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