The United States Court of Appeals for the Eighth Circuit (the “court”) (ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079 (8th Cir. 2016)) recently overturned a decision of the National Labor Relations Board (the “NLRB”) which had held that a brief comment about an authorization card by one employee to fellow employees, without actually presenting a card to those employees, did not amount to solicitation. The case involved three employees who worked at a ConAgra plant at which the manly snack, Slim Jim, is manufactured. ConAgra maintained a no-solicitation policy at its plant which prohibited solicitation during working time or in working areas. A union supporter and two other employees had engaged in conversations over several days concerning authorization cards. During one of the conversations the union supporter told her fellow employees that she would leave authorization cards in their lockers. The issue arose because the union supporter told the employees, as she walked by them on the shop floor, that she had left authorization cards in their locker. (“Hey, I put those cards in your locker.”) The solicited employees turned the authorization cards in to their supervisor and told him of the encounter. The union supporter was disciplined for violating ConAgra’s no-solicitation rule.
The court found that the NLRB incorrectly held that solicitation cannot take place without a contemptuous offer of an authorization card. The court held, “…neither the presentation of a card for signature at the time nor the duration of the conversation is determinative [of whether the statement amounts to solicitation].” The court found that, as a result of their prior conversations, it was reasonable for the solicited employees to understand that the union supporter, in commenting about the authorization cards, was soliciting them to sign those cards. (“Where an employee makes a statement that is intended and understood as an effort to obtain a signed card, and that effort is part of a concerted series of interactions calculated to acquire support for [a] union organization, that employee has engaged in solicitation.”) This was a common sense approach to a common problem.
Clearly, solicitation and Slim Jim manufacturing should not be required to mix.
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