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NLRB Limits Employer Right to Discipline for Violation of No-Solicitation Rule

October 11, 2003

In an effort to strike a balance between the right of employers to control the workplace and the right of employees under the National Labor Relations Act (the "NLRA") to engage in union organizational activity, the National Labor Relations Board (the "NLRB") has developed a series of rules regulating the permissible scope of employer policies prohibiting solicitation and distribution activities. In brief, an employer may adopt a non-discriminatory rule prohibiting solicitation by one employee of another during the working time of either employee and prohibiting the distribution of literature in work areas at any time. In a recent decision, the NLRB adopted an extremely narrow view of what constitutes "solicitation" and thereby found that an employer acted unlawfully by relying upon its no-solicitation policy to discipline an employee who, while on duty, wore a t-shirt encouraging employees to support a union and invited two co-workers to attend a union meeting. Wal-Mart Stores Inc., Case 17-CA-21045-1 (September 30, 2003).

The facts at issue in the case were straightforward. Brian Shieldnight was a Wal-Mart employee who had contacted a union about possible representation of employees of the store in which he worked. He entered the store while off duty, wearing a t-shirt that read "Union Teamsters" on the front and "Sign a card . . . ask me how" on the back, and was observed speaking to employees who were working. Wal-Mart considered Shieldnight's conduct as "solicitation" which violated its policy prohibiting employees from engaging in solicitation on behalf of any cause or organization during working time. As a result, he was directed to leave the store. The next day, Shieldnight, while on duty, spoke to two other employees who also were on duty, and invited them to a union meeting that evening. He also told one of the co-workers that he would like her to consider the union and to sign a union authorization card, although he presented no card to her at that time. Wal-Mart concluded that Shieldnight had again violated the no-solicitation rule and based on both incidents issued him a written warning. The union subsequently filed an unfair labor practice charge.

Adopting the recommended decision of an Administrative Law Judge ("ALJ"), the NLRB first rejected Wal-Mart's contention that merely by wearing the shirt emblazoned with the message "Sign a card . . . ask me how" Shieldnight engaged in "solicitation" and that he therefore was lawfully disciplined for violating the no-solicitation policy. In reaching this conclusion, the NLRB cited its long line of cases holding that wearing union t-shirts or other union insignia generally constitutes protected activity under the NLRA. The NLRB reasoned that, unlike the mere wearing of a shirt, "solicitation" for a union generally means "actual presentation of an authorization card to an employee for signature at that time" which "prompts an immediate response from the individual or individuals being solicited." While the message on Shieldnight's shirt urged employees to sign a card, that message did not "speak" directly to any specific individuals nor call for an immediate response. Thus, the message on the shirt did not cause Shieldnight's otherwise protected conduct (wearing a union shirt) to become solicitation violative of Wal-Mart's no-solicitation rule.

On the other hand, the ALJ had found that Wal-Mart lawfully warned Shieldnight for violating its no-solicitation policy by his on-duty conversation with co-workers in which he invited them to attend a union meeting that evening. The NLRB rejected the ALJ's determination on this point, again finding that Shieldnight's conduct did not violate the no-solicitation policy and that the disciplinary warning was unlawful on this basis as well. Like its conclusion regarding the t-shirt, the NLRB's decision here turned on its adoption of a narrow definition of "solicitation": "[S]olicitation for a union is not the same thing as talking about a union or a union meeting or whether a union is good or bad." In this regard, the NLRB cited its prior cases holding that employee conduct such as asking a co-worker if she had a union authorization card, or introducing a co-worker to a union representative, did not constitute "solicitation" which could be lawfully prohibited under an employer's no-solicitation policy. See W.W. Grainger, 229 N.L.R.B. 161 (1977), enf'd, 582 F.2d 1118 (7th Cir. 1978); Sahara-Tahoe Corp., 216 N.L.R.B. 1039 (1975), enf'd in relevant part, 533 F.2d 1125 (9th Cir. 1976). The NLRB acknowledged that Shieldnight did not merely invite the co-workers to a meeting but also told one of them that he would like her to consider the union and to sign a union authorization card. However, there was no evidence that Shieldnight either presented a card to the co-worker or made any effort to have her sign a card at that time. Accordingly, the NLRB found that "there is no suggestion that [the employees's] work was significantly interrupted," and that Shieldnight's conduct therefore did not constitute "solicitation" for which he could be disciplined.

Wal-Mart is an important decision for employers concerned about limiting union solicitation on their premises. Many employers assume that under a lawful policy prohibiting solicitation during working time they may prevent employees from engaging in any form of union activity, including discussion of union matters, during times they are expected to be working. The Wal-Mart decision illustrates that this is not the case, and that an employer who contemplates imposing discipline for violating a no-solicitation policy must closely examine the conduct involved and determine whether it fits within the narrow definition of solicitation adopted by the NLRB. Clearly, there will be many situations in which mere discussion of a brief nature - particularly if it does not significantly interrupt the employees' work and does not involve the actual presentation of a union authorization card - cannot lawfully form the basis for discipline.