Eighth Circuit Rejects NLRB's "Novel" Interpretation of Union Solicitation Under the NLRA | Practical Law

Eighth Circuit Rejects NLRB's "Novel" Interpretation of Union Solicitation Under the NLRA | Practical Law

In ConAgra Foods, Inc. v. NLRB, the US Court of Appeals for the Eighth Circuit held that a categorical rule that an employee must actually present a union authorization card to employees for signature in order to engage in solicitation was unreasonable, and that an employee engages in solicitation when the employee makes a statement intended to obtain a signed union authorization card as part of a related group of interactions seeking support for union organization.

Eighth Circuit Rejects NLRB's "Novel" Interpretation of Union Solicitation Under the NLRA

by Practical Law Labor & Employment
Law stated as of 29 May 2020 • USA (National/Federal)
In ConAgra Foods, Inc. v. NLRB, the US Court of Appeals for the Eighth Circuit held that a categorical rule that an employee must actually present a union authorization card to employees for signature in order to engage in solicitation was unreasonable, and that an employee engages in solicitation when the employee makes a statement intended to obtain a signed union authorization card as part of a related group of interactions seeking support for union organization.
On February 19, 2016, in ConAgra Foods, Inc. v. NLRB, the US Court of Appeals for the Eighth Circuit held that:
  • A categorical rule that an employee must present a union authorization card to employees for their signature in order to engage in solicitation violating a valid no-solicitation policy was unreasonable under the NLRA.
  • An employer lawfully censured an employee for engaging in solicitation in violation of the employer's valid no-solicitation policy when:
    • the employee made a statement to other employees during working time about obtaining a signed union authorization card; and
    • the statement was part of a related group of interactions seeking support for union organization.
(ConAgra Foods, Inc. v. NLRB, (8th Cir. Feb. 19, 2016).)

Background

In November 2014, the NLRB issued a 2-1 decision finding that ConAgra Foods violated Sections 8(a)(3) and (1) of the NLRA by:
  • Censuring an employee (Jeanette Haines) who, several days after asking two other employees in a restroom during a break if they wanted to sign union authorization cards, briefly stopped working and told the other employees while on the production floor that she had left the cards in their locker.
  • Posting a letter reminding employees about its no-solicitation policy that could be reasonably construed to prohibit protected union discussions.
(See ConAgra Foods, Inc., 361 NLRB No. 113 (Nov. 21, 2014).)
ConAgra appealed the NLRB's decision.

Outcome

  • The full Eighth Circuit panel rejected the NLRB's "novel" view of solicitation under the NLRA as unreasonable, holding that:
  • A categorical rule (seemingly identified by the NLRB in its ConAgra decision) that an employee must actually present an authorization card to employees in order to engage in solicitation:
    • was not warranted by the NLRB's own precedent; and
    • was contrary to the NLRA.
  • The amount of time an employee spends talking about union authorization cards is not determinative of whether it constitutes solicitation.
  • The NLRB excessively and incorrectly relied on the fact that Haines only briefly mentioned to the other employees that the cards were in their locker.
The Eighth Circuit reversed the NLRB's conclusion that ConAgra violated the NLRA by censuring Haines. The court held 2-1 that the NLRB's finding that Haines did not engage in solicitation was not supported by substantial evidence because:
  • Haines's statement to the other employees was:
    • intended by her and understood by the other employees as seeking to obtain a signed union authorization card; and
    • part of a series of interactions in which Haines was seeking to acquire support for the union.
  • ConAgra had a lawful no-solicitation policy that limited solicitation to non-working time.
(Contrary to the majority, the dissenting Circuit Judge found that substantial evidence supported the NLRB's finding that Haines did not engage in solicitation.)
On the issue of whether solicitation requires presentation of an authorization card for signature and actual disruption of work, the full Eighth Circuit noted that:
  • When addressing what is or is not lawful solicitation, the NLRB must balance employees' rights to organize absent employer interference with an employer's right to maintain discipline in the workplace (see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945); NLRB v. Babock & Wilcox Co., 351 U.S. 105, 112 (1956)).
  • Contrary to the NLRB's assertion in ConAgra, the NLRB has not consistently held that an employee must present an authorization card for signature in order to engage in solicitation (see Home Depot, U.S.A., Inc., 317 N.L.R.B. 732 (1995)).
  • A categorical rule that an employee must present an authorization card for signature in order to engage in solicitation would:
    • upset the balance between employer and employee rights under the NLRA in favor of employees;
    • provide organizers a "road map" on how to win union support during working time and in work areas;
    • lead to workplace disruption and prevent employers from maintaining production and discipline;
    • prevent employers from restricting various types of informal solicitation methods and actions; and
    • be unreasonable because it would effectively allow explicit requests for union support during working time, as long as the soliciting employee instructed other employees to wait to sign the authorization card until after their shift.
  • Allowing employees to engage in solicitation during working time that is sufficiently brief and non-disruptive (and prohibiting employers from censuring such solicitation under a valid no-solicitation policy) would further tip the balance between employer and employee rights in favor of employees.
Separately, the full Eighth Circuit panel held that the NLRB's conclusion that ConAgra's letter violated the NLRA was supported by substantial evidence because the letter could reasonably be read as prohibiting union-related discussions during working time.

Practical Implications

The Eighth Circuit's decision in ConAgra rejects the NLRB's analysis that solicitation requires presentation of a union authorization card for signature, or that the duration of the communication between the soliciting employee and other employees is determinative. While it is easier for employers to enforce valid no-solicitation policies under the Eighth Circuit's holding, it remains to be seen whether the Board will continue its narrow interpretation of union solicitation and whether other circuit courts will join the Eight Circuit's analysis.

UPDATE

On May 29, 2020, in Wynn Las Vegas, LLC, the Board overruled its decision in ConAgra to the extent that it held that union solicitation takes place only when an authorization card is presented during the conversation and when there is a significant interruption of work (369 N.L.R.B. No. 91, slip op. at 3-6 (May 29, 2020); see Legal Update, Union Solicitation Under the NLRA Does Not Require Contemporaneous Presentation of an Authorization Card or Actual Disruption of Work: NLRB).