Andrew Strom is Associate General Counsel of SEIU Local 32BJ.

One of the most common recurring issues in NLRB cases is the validity or application of an employer’s no-solicitation policy. Yet, after literally thousands of cases addressing this issue, the heated debate among Board members in a recent case, Conagra Foods, demonstrates that it’s time for a new approach.

The facts of the case are as follows:  The employer had a policy that prohibits workers from soliciting during working time. A worker, Janette Haines, had previously asked two co-workers if they would sign union authorization cards. They said they would, and they gave Haines the number of their shared locker so she could place the cards inside. Several days later, as she walked past the two workers during working time, Haines told them that she had placed the cards inside their locker. The employer then issued Haines a warning for violating its no-solicitation policy.

The Board majority (Chairman Pearce and Member Schiffer) found that the employer acted illegally when it disciplined Haines because Haines’ conduct did not constitute solicitation. The Board held that solicitation should be limited to “the presentation of a card for signature.” In dissent, Member Miscimarra argued that Haines was soliciting her co-workers when she informed them that the cards were in their locker because she was trying to have them sign authorization cards, even if she expected them to sign the cards later.

Member Miscimarra acknowledged the long line of cases holding that employers may not prohibit conversations about unions when they allow other nonbusiness conversations during working time. But, he argued that this line of cases did not apply because the conversation, which the ALJ found “lasted a matter of seconds,” interrupted the performance of work. Member Miscimarra insisted that prior to this case, the law on solicitation “has been governed by one of the clearest and most workable rules-of-the-road in the case law we administer,” but he did not explain where he would draw the line between a conversation about unions that an employer must tolerate (if it allows other conversations) and a “solicitation” that an employer is allowed to prohibit during working time.

If I had to choose between the approach taken by Member Miscimarra and the approach taken by the Chairman and Member Schiffer, I would definitely say that the majority opinion offers more clarity for lawyers. But, wherever possible the Board’s goal should be to provide clarity to workers, and not just to lawyers. And, here, the Board majority falls short because it perpetuates the use of the legalistic term “solicitation,” despite knowing from years of experience that the term engenders confusion among both rank-and-file workers and front-line supervisors.

The original rationale for allowing employers to ban solicitation during working time is that “working time is for work.” But, in a 1972 case, the Board explained that “[w]here it could be shown from the characteristics of the work that union solicitation during worktime would in no way interfere with the performance of the work … a no-solicitation rule of any kind would be invalid.” Along these same lines, the Board has long held that if an employer allows workers to discuss subjects unrelated to work during work time, then it must also allow workers to talk about unions. In Conagra, the Board asserted that drawing a distinction between “solicitation” and conversation makes sense because an act that prompts an immediate response “presents a greater potential for interference with employer productivity.” But, if co-workers have been talking to each other about the union for weeks, is there really a greater risk of interference with productivity if one asks another to sign a card or petition?

Workers generally understand that working time is for work, and they know that they risk discipline or even termination if they neglect their job duties. And clearly, some tasks require a worker’s undivided attention. But, in most work settings, a worker would not fear discipline if he shows his co-worker a photo of his baby from his wallet (or his smart phone). Is it really more disruptive to show a co-worker a union authorization card? Why not have one simple rule — regardless of whether a conversation includes a “solicitation,” workers have the same right to talk to each other about the union as they have to talk to each other about non-work topics?