NLRB Retreats From Overly Restrictive Definition of “Solicitation.”

The National Labor Relations Board overruled its own precedent in finding that an employee who encourages another employee to vote for a union has engaged in solicitation that may lawfully be prohibited during their working time.

Long-standing precedent permits employers to prohibit “solicitation” during an employee’s working time. In the 2005 case of Wal-Mart Stores and the 2014 case of ConAgra Foods, Inc., the Board held that that, in order to constitute impermissible union solicitation, the solicitor must present a union authorization card during the interaction and that the interaction must constitute a “significant interruption” of work. In Wynn Las Vegas, LLC, however, the Board rejected this restrictive definition. Rather, it held that “solicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation,” even without the presence of a union authorization card. The Board also rejected the premise that there must be any interruption of work – let alone a significant one – in order to constitute a violation of a no-solicitation rule.

This is another instance of the Board stepping back from what employers believed to be the overly union-friendly decisions that issued primarily under the Obama administration. The previous iteration of the Board’s interpretation rendered solicitation rules virtually useless. This decision applies a more sensible approach to an employer’s right to prohibit solicitation during working time.