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Employer Can Lawfully Censure Employee Who Solicits Union Support in the Workplace


ConAgra Foods, Inc. v. NLRB - Eighth Circuit Court of Appeals


Facts:  In August 2011, the United Food and Commercial Workers International Union, Local 75 ("Union") sought to organize workers at a ConAgra manufacturing plant in Ohio.  In early 2012, ConAgra posted a letter on a bulletin board at the plant that reminded workers that ConAgra had a policy in place that employees could not solicit union support or distribute union related materials during working time or in work areas.  In September 2012, an incident occurred between Janette Haines ("Haines"), a leading proponent of union organization, and Megan Courtaway ("Courtaway") and Andrea Schipper ("Schipper").  The relevant facts were disputed with Haines stating she talked with Courtaway and Schipper on several occasions in the bathroom in regard to singing union authorization cards.  Courtaway said that Haines had actually approached them on the production floor and Schipper overheard the conversation.  

After Courtaway and Schipper reported the conversation to management, management gave Haines a verbal warning along with a notice of corrective action.  The Union subsequently filed a charge that ConAGra violated the NLRA by censuring Haines for soliciting union membership and by prohibiting discussion of unions during work time.  An ALJ ruled in favor of the Union and a divided NLRB panel affirmed. 

Holding:  (Note, for purposes of this analysis, I will look only at the issue over whether ConAgra violated the NLRA in regard to prohibiting union solicitation at work.)  The Court of Appeals began its analysis with a nod to the deference afforded to rulings from the NLRB.  The key issue here turned on whether Haines had engaged in protected activity under the NLRA.  In this case, the Court rejected the NLRB's holding that solicitation of union membership must be accompanied by a physical presence of an authorization card presented for signature.  The facts had established that Haines had discussed Courtaway and Schipper signing union authorization cards...but apparently Haines had never directly presented them.

As for whether Haines made any statement that could constitute solicitation, the Court noted that solicitation did not require an employee utter an express question or command to solicit union membership.  Consequently, in the Court's opinion, Haines engaged in solicitation when she approached fellow workers in the workplace to discuss them signing union authorization cards.

Judgment:  The Eight Circuit Court of Appeals reversed the NLRB's ruling and held that ConAgra did not violate the NLRA when it censured Haines for violating the company's no-solicitation policy and attempting to solicit union support in the workplace.

The Takeaway:  I highlight this case as a reminder to employees that not all union related activity is considered protected activity.  In this instance, ConAgra had a policy in place that prohibited employees from soliciting union support or distributing union related materials at the workplace or during work hours.  As the Court noted, Haines engaged in conduct that could be considered solicitation, barring the fact that she was not required to utter an express question or command.  As a result of ConAgra's policy, I think the Court got it right when it held that ConAgra lawfully censured Haines and consequently was found to not have violated the NLRA.

Majority Opinion Judge:  Judge Beam

Date:  February 19, 2016

Opinion:  hr.cch.com/ELD/ConAgraNLRB021916.pdf

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