Union Solicitation Under the NLRA Does Not Require Contemporaneous Presentation of an Authorization Card or Actual Disruption of Work: NLRB | Practical Law

Union Solicitation Under the NLRA Does Not Require Contemporaneous Presentation of an Authorization Card or Actual Disruption of Work: NLRB | Practical Law

In Wynn Las Vegas, LLC, the National Labor Relations Board (NLRB) held that an employee does not have to cause a significant disruption of work or contemporaneously present a union authorization card for signature to engage in union solicitation under the National Labor Relations Act (NLRA).

Union Solicitation Under the NLRA Does Not Require Contemporaneous Presentation of an Authorization Card or Actual Disruption of Work: NLRB

by Practical Law Labor & Employment
Published on 02 Jun 2020 • USA (National/Federal)
In Wynn Las Vegas, LLC, the National Labor Relations Board (NLRB) held that an employee does not have to cause a significant disruption of work or contemporaneously present a union authorization card for signature to engage in union solicitation under the National Labor Relations Act (NLRA).
On May 29, 2020, in Wynn Las Vegas, LLC, the panel (Board) heading the NLRB's judicial functions:
  • Held that:
    • although union solicitation ordinarily involves requesting an employee to join a union by signing a union authorization card, it also encompasses the act of encouraging employees to vote either for or against union representation; and
    • an actual disruption of work is not necessary for an activity to constitute union solicitation.
  • Overruled Wal-Mart Stores and ConAgra Foods, Inc. to the extent that they hold that union solicitation under the NLRA occurs only when:
    • a union authorization card is physically presented during the conversation; and
    • there is an actual disruption of work (rather than a momentary interruption of brief duration).
    (Wal-Mart Stores, 340 N.L.R.B. 637, 639 (2003), enf. denied in relevant part 400 F.3d 1093 (8th Cir. 2005); ConAgra Foods, Inc., 361 N.L.R.B. 944, 945 (2014), enf. denied in relevant part 813 F.3d 1079 (8th Cir. 2016).)
(369 N.L.R.B. No. 91 (May 29, 2020).)
The Board's rejection of the narrow interpretation of union solicitation articulated in Wal-Mart Stores and ConAgra Foods makes it easier for employers to enforce valid no-solicitation policies. Under Wynn Las Vegas, it is sufficient for an employer to show that an employee encouraged another employee to vote a certain way in a union election during working time.