United States: Solicitation And Distribution Rules And Their Enforcement Under Attack: NLRB Continues To Narrow Employer Limitations On Workplace Communications

The National Labor Relations Act's limitations on employer no-solicitation/no-distribution policies have been established for decades, right?  Most labor relations practitioners and Human Resources specialists are familiar with "black letter law" that workplace solicitation can be restricted to non-work time and distribution can be restricted to non-work time and non-work areas.  Simple, isn't it?

Under two recent NLRB cases, Conagra Foods, Inc., 361 N.L.R.B. No. 113 (Nov. 21, 2014) and Mercedes-Benz U.S. International, Inc., 361 N.L.R.B. No. 120 (Nov. 26, 2014), the rules turned out to not be so simple.  In both cases, the NLRB continues to whittle away at employer limitations on workplace conduct claimed to interfere with federally protected rights to support or organize unions, complicating decades of easy-to-administer Board precedent.   

Most significantly, the Board in Conagra split hairs about what is or is not "solicitation," leaving employers in any situation in which a union authorization card is not presented or requested to be signed to guess at whether discipline for work-time discussions under otherwise lawful policies can be administered. 

Solicitation" Is Not "Discussion": Enforcing Lawful No Solicitation Policies Just Got Harder

In Conagra, an employee who was an active and open union supporter, in the midst of a union organizing drive, engaged in a brief verbal exchange on a production floor in which she informed coworkers where they could find union authorization cards they had previously agreed to sign.  One employee was waiting for a production line to start and the other, who was cleaning, stopped momentarily when the employee spoke to her. The employee who was pushing for the union did not ask or attempt to have her coworkers sign authorization cards, had no cards with her and the interaction lasted only a few seconds.   She "merely informed her co-workers that she had done what she told them she would do, i.e., leave cards in a locker."  After a coworker reported the exchange to the employee's lead person, the employer issued a verbal warning for violation of its no-solicitation policy.  The employer also posted a letter stating its solicitation policy covered union "discussions" and that those discussions were limited to non-working times.

Stressing that the lawfulness of the employer's no-solicitation policy was not at issue, the Board concluded that the employee's conduct did not constitute solicitation under Board law.  According to the Board, mere mention of union authorization cards during working time is not solicitation.  Usually, solicitation, said the Board, "means asking someone to join the union by signing his name to an authorization card."  Asking for a signature, explained the Board, prompts an immediate response, and therefore presents greater potential for interference with productivity of employees who are supposed to be working.  (In the extreme, the Board went so far as to suggest in dicta that even an invitation to a union meeting was more akin to a statement of fact, did not require an immediate response, and was not solicitation). 

According to the Board, in the employees' brief interaction described above, there was no signature request and no cards presented.  There was no request for action, no risk of interference with production and the providing of information only lasted a few seconds.  As a result, the Board ruled, there was no solicitation and in turn no violation of the employer's solicitation policy.  Absent solicitation and any policy violation, the employer's verbal warning was deemed to be an interference with the employee's right under the Act to engage in protected union activity. 

The Board then similarly concluded that the employer's letter regarding its no solicitation policy was unlawful because employees could view it as barring all "discussions" during working time.  "Some discussions about unions," said the Board, "indeed, most discussions about unions, are just that – discussions, not solicitations."  The letter's expansive limitation of union-related discussions to non-working time was thus overbroad and unlawful under the Act.

In a strong dissent, Member Miscimarra observed that the Board majority effectively invalidated the employer's lawful no-solicitation policy by requiring an employee to display a union authorization card for an employee's conduct to constitute solicitation.  Miscimarra lamented that the decision would make it impossible to know in advance whether and what type of solicitation is prohibited and that, "[t]his is an unfortunate development in an important area that, until now, has been governed by one of the clearest and most workable rules-of-the-road in the case law we administer."  Finally, Miscimarra found the decision was not reasonable with respect to the employer's letter because it merely reminded "employees about a lawful no-solicitation rule."

Overbroad Solicitation Policy, Mixed-Use Work Area Distribution Ban Unlawful

Less than a week after Conagra, the Board issued its decision in Mercedes-Benz in which it affirmed an administrative law judge's ruling that several employer policies unlawfully limited protected union activity during an organizing drive at the automaker's Alabama plant.  The decision struck down a no-solicitation policy that prohibited "solicitation and/or distribution of non-work related materials . . . during work time or in working areas."  The policy was found to be ambiguously overbroad because employees "reasonably would understand" it "to prohibit solicitation, in work areas, by employees not on working time."

Acknowledging that the employer "generally allowed employees to discuss the union in the workplace," the Board nevertheless ordered rescission of the policy and required either distribution of a corrected copy of the handbook or distribution of a handbook insert advising of the rescission or containing a lawfully worded policy with adhesive backing that would cover the unlawful provision. "As long as the rule is 'on the books,' it continues to have potential to chill employees' exercise of their [NLRA] rights.  Its existence requires a remedy," the ALJ reasoned.  "Based on the entire record, I find that [the employer] truly sought to be neutral and did not intend its rule to be construed in a way which discouraged employees from engaging in protected activities.  However, the ... intent is not relevant."

The Board in Mercedes also limited employers' ability to restrict distribution of union literature in mixed-purpose areas of employer facilities. The facility had "team centers" that included a refrigerator, microwave oven and picnic table used by employees during their breaks, but also served as group leader offices with filing cabinets, computers, and related equipment.  Supervisors and human resources representatives used the centers when they came to the production area to confer with employees.  The employer prohibited distribution of union literature in one of these "team centers" under its no-solicitation/distribution policy.

Finding no disparate policy enforcement by the employer, the Board nevertheless found application of the policy to the team centers unlawful, as it enforced restrictions in a mixed work/non-work area, in which the Act gives off-duty employees the right to distribute literature to other off-duty employees.  The Board rejected the employer's argument that the team center at issue, which was enclosed by seven- to eight-foot walls, was so close to the production floor that it should be considered only a "work" area, and concluded the employer had shown no "special circumstances" negating employees' distribution rights within the center, such as evidence that union flyer distribution in the walled team center interfered with work and equipment outside.

Key Policy Review and Enforcement Take-Aways

Employers should tread increasingly carefully when developing, implementing and administering any policy under which employees could reasonably conclude their right to engage in protected concerted activity – either with respect to common or representative activity concerning employment terms or relating to unions – is involved.   Following Conagra and Mercedes-Benz, employers should consider the following actions:

  • Review and correct any no-solicitation, no-distribution policy that does not clearly follow the applicable non-work time, and for distribution, non-work area Board limits.   Any ambiguities should be eliminated, as vague or unclear language will be construed against employers and in employees'/unions' favor.
  • Before administering any level of discipline for policy violations, evaluate each case on its facts to determine whether actual solicitation has occurred.  Absent some direct request to sign a union membership card or presentation of a card, other discussions simply mentioning a union or even, possibly, an invitation to a union meeting likely would not rise to the level of lawfully disciplinable conduct under Conagra.
  • Evaluate facility areas to determine if they are work areas, non-work areas or mixed use areas.  If an area is a non-work or mixed-use area, under Mercedes-Benz, adverse action for distribution of literature will be unlawful, absent "special circumstances" indicating, e.g., some interference with production or work performance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions