Dissent in Exile: Wynn Las Vegas, LLC, 369 NLRB No. 91 (May 29, 2020)

Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

What’s the difference between talking about whether a union is good or bad, and encouraging a co-worker to vote for or against union representation?  I don’t know either, but the National Labor Relations Board has just held that an employer may categorically prohibit the latter type of conversation during work time even though it must allow the former if workers are allowed to discuss other non-work topics.

The law regarding workers’ rights to talk about unions at work has long been a mess because the Board has insisted on differentiating between “talking” and “soliciting.”  The rule regarding talking is relatively straightforward.  If workers are allowed to talk about movies or sports or their hobbies while they work, then they also have a right to talk about unions.  But, at the same time, the NLRB has created a separate line of cases regarding “soliciting,” and it has held that employers may prohibit “soliciting “ during work time.  In a 1977 case, W.W. Grainger, the Board tried to clarify this law by explaining that “solicitation 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.”  Instead, the Board held that solicitation usually means asking a co-worker to sign an authorization card in the same way that a solicitation for a charity would mean asking an employee to contribute to the charity.  Then, in 2003, in Wal-Mart Stores, the Board set forth the rationale for treating solicitation differently from other types of conversations about unions:  “solicitation activity prompts an immediate response from the individual or individuals being solicited and therefore presents a greater potential for interference with employer productivity if the individuals involved are supposed to be working.”

Now, in Wynn Las Vegas, LLC, the Trump appointees on the NLRB claim that they have retained the distinction between “talking” and “soliciting,” but they have redefined “solicitation” in a way that includes almost every conversation about unions during the lead-up to a union election.  Disregarding the reasons why the Board has long treated discussions about unions differently than solicitations, the Trump Board now holds that “solicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation.”

The Wynn Las Vegas decision is both disingenuous and incoherent.  The Trump Board Members misleadingly cite a Supreme Court decision, U.S. v. Kokinda, to create the impression that the decision supports their bizarre definition of “solicitation.”  In fact, in Kokinda, the Court upheld a Postal Service rule prohibiting solicitation based on the understanding that “[s]olicitation requires action by those who would respond:  the individual solicited must decide whether or not to contribute … and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card.”  Obviously, when a worker encourages a co-worker to vote in favor of unionization in an upcoming election, the co-worker hearing the pitch does not need to take any immediate action whatsoever.  The decision is also disingenuous because the Board Members assert that one of their objectives in redefining solicitation is “to give employees appropriate protection in exercising their [statutory] rights.”  In fact, the result of the decision is to take away employees’ rights.

Moreover, the decision is incoherent because the Board Members lack the courage of their convictions.  I hesitate to give them ideas, but if they want to give employers carte blanche to ban all conversations where a worker asks a co-worker to vote for union representation, then the Board should have come right out and overruled W.W. Grainger and the dozens of other cases holding that employers must allow workers to talk about unions if the workers are allowed to discuss other subjects while they work.  Instead, they have managed to make the distinction between talking and soliciting even less clear than it was before.

The Board Members justified their decision by asserting that “union solicitation is likely to disrupt work.”  But, if the goal were not simply to give employers another tool to stifle worker speech, the Board could have explained that employers are free to enact neutral rules that prohibit workers from engaging in conversations that actually disrupt work.  It is axiomatic that “working time is for work,” but an employer motivated by that concern should ban all conversation topics that are “likely to disrupt work.”  And if employers conducted research about conversation topics that distract workers from their work, I’m sure discussions about unions would be far down the list.  The final proof that this decision is just another effort to make it harder for workers to organize is that the Board holds that there is no longer a requirement that “a conversation last a certain amount of time in order for an act to be considered a union solicitation.”  In other words, in the guise of ensuring that “working time is for work,” employers are now free to punish workers for even the most fleeting statement like “don’t forgot to Vote Yes in tomorrow’s election.”  I’m sure that will do wonders for workplace productivity.

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