The NLRB recently decided that ConAgra Food’s discipline of Janette Haines for violating the non-solicitation policy was unlawful, even though Haines engaged in a union-related discussion, and her discussion prompted another employee to stop working during work time.

Here is the NLRB’s version of the facts: Haines, an active and open union supporter, was in the bathroom during a break and asked two of her coworkers if they would sign union authorization cards. The coworkers agreed and gave Haines their locker numbers so she could put the cards inside. Then, during work hours, Haines told the coworkers that she put the authorization cards in their lockers. At the time, one of the coworkers was waiting for the production line to start; the other coworker stopped cleaning, momentarily, while Haines spoke to her. Another coworker reported the exchange, which only lasted a few seconds, to the leadperson. ConAgra issued Haines a verbal warning for violating its non-solicitation policy.

Despite the fact that Haines engaged in a union-related chat during work time, the NLRB found that her communication with her coworkers was not solicitation. The NLRB focused on the fact that Haines did not present her coworkers with authorization cards or ask them to sign the cards, or otherwise ask them to join the union during work time. Accordingly, the NLRB concluded that Haines did not violate ConAgra’s non-solicitation policy and ConAgra’s discipline of Haines under the policy was pretext for discrimination.

In addition to the speech in which Haines engaged, the NLRB provided the following examples of employee speech that are NOT solicitation:

  • Stating employee would like coworkers to consider signing authorization card where no card tendered at the time
  • Asking coworker to attend union meeting
  • Asking coworker if she had an authorization card

In essence, the NLRB has drawn a bright line that defines solicitation as asking someone to join the union by signing an authorization card at that time. Any other conduct is subject to the NLRB’s interpretation of what is and what is not solicitation.

So, what’s the takeaway? Be careful how you apply your non-solicitation policy. Do not assume that an employee has violated the policy because the employee engaged in union-related discussion during work time. Consider whether the communication at issue was actual solicitation, rather than merely union-related talk. If the communication is not solicitation, under the NLRB’s definition, consider whether the employee has violated any other policy (e.g., policy prohibiting employee from spending work time on personal matters), but make sure you are applying your policies fairly and not only to employees who are actively recruiting for the union.