In the midst of a prolonged union organizing drive, a supervisor for Conagra Foods gave a verbal warning to an employee who told two other employees where they could find union authorization cards to sign. It was during the work time of all three employees. Because the employee did not have the cards with her and the break in the work time was only for a few seconds, the majority of a Board panel held that the discipline was unlawful, even though the Company had a lawful no-solicitation policy that prohibited soliciting during work time.
The distinction between just talking about a union during work time (when the employer permits employees to talk about other subjects, e.g., sports, weather) and solicitations is not new. Making the presence of a union authorization card or the amount of time taken by the violation the sine qua non are not only new but also troubling because they effectively broaden the definition of permissible talk during working time (or, if you wish, narrow what can be prohibited). The lines become blurred and when to enforce the rule becomes even more confusing.
The same panel majority held that Conagra violated the Act when it published a notice to employees that "discussions" about unions are "covered" by the legal no-solicitation policy. Even though the notice only prohibited discussions that violated the no solicitation policy, the majority held that the word "discussions" was too vague and would unlawfully chill the desire of an employee to engage in "talk" about unions during work time. The notice, therefore, violated the Act.
Certainly the word "discussion" is vague (just as "harassment" is vague). The Board has held, however, that a vague word can be clarified when tied to an explanatory policy, such as an EEO policy. This Board's conclusion that the ambiguity of the word "discussion" cannot be overcome by a specific reference to the no solicitation policy is alarming in and of itself. It becomes even more alarming when applied to other situations, such as the inherent ambiguity of "harassment" clarified by reference to an employer's EEO policy. If there is a difference, I don't see it. If there is no difference, the Board may have just added another layer of complexity to codes of conduct and communications to employees. On the other hand, this may be nothing more than the Board ignoring precedent, even its own, to reach a preconceived result.
If the Board's desire is to confuse supervisors so much that their ability to enforce lawful policies to control union organizing during work time is "chilled" out of existence, this case would be evidence.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
