In Wynn Las Vegas, LLC.,[i] (“Wynn”), the National Labor Relations Board reexamined the Board’s definition of “union solicitation” for the purpose of determining whether discipline issued to a pro union employee for violation of the employer’s Solicitation Policy, based on a conversation she had with a co-worker during worktime encouraging the co-worker to vote for the union in an upcoming representation election, violated the National Labor Relations Act (“Act”).

Fact Summary

Wynn is a hotel and casino located on the Las Vegas strip. The employee Kanie Kastroll (“Kastroll”), whose discipline was at issue in the case, is a table games dealer (“TGD”). The TGDs are represented by a union. Since May 13, 2014, Wynn has “maintained a written Solicitation and Distribution Policy (Solicitation Policy)… [whose] purpose… is to promote ‘a productive, ef­ficient, and clean work environment, as well as to mini­mize the potential of any disruption to the Respondent's guests.’”[ii] The Solicitation Policy states in pertinent part:[iii]

2. All . . . solicitation by employees is prohibited in work areas during the work time of the employee initiating the solicitation or the employee being solicited.

4. Solicitation is oral communication asking or seeking a person to take some action, such as buying a product or service, contributing to a charity, or joining an organ­ization. It also includes requests for employees to sign union authorization cards or representation petitions and the exchange of such documents for signature.

On February 2, 2015, Kastroll approached security officer Johnny Moreno (“Moreno”) who was working at “Priority One Post which is the highest customer traffic area on [the] property.” At Priority One Post, security officers “are responsible for assisting guests as well as ensur­ing casino security.” Kastroll spoke to Moreno about the upcoming election where security officers would vote on whether to have union representation. Kastroll encouraged Moreno and his fellow security officers to vote in favor of union representation and the conversation lasted approximately three minutes. “Numerous guests and other employees walked by Of­ficer Moreno during Kastroll’s interaction with him.” Several guests appeared to need directions but were unable to get Moreno’s attention and one guest had to ask another security officer Joshua Browning (“Browning”) for assistance. Browning, who was stationed nearby, overheard part of Kastroll’s conversation with Moreno and reported it to Wynn’s President who in turn informed Wynn’s General Counsel Kevin Tourek (“Tourek”).

Tourek, assisted by employee relations manager Courtney Prescott (“Prescott) initiated an investigation which included interviews with and written statements from Kastroll, Moreno and Browning and a review of the casino’s surveillance video. At the conclusion of the investigation, Prescott issued Kastroll a first written warning for violation of the Solicitation Policy based on her conversation with Moreno. The discipline was challenged as a violation of the Act, but the Administrative Law Judge (“ALJ”) who presided over the hearing dismissed the complaint finding Kastroll’s conversation constituted “union solicitation.”[iv] An appeal followed to the Board.

NLRB’s Opinion

In deciding the issue, the Board first examined earlier Board decisions in Wal-Mart Stores[v] and ConAgra Foods[vi] (cases cited by the General Counsel who argued in favor of reversal of the ALJ decision) and concluded both cases defined “solicitation” too narrowly. The Board then reviewed the U.S. Supreme Court’s decision in Republic Aviation Corp. v. NLRB[vii] noting the Court’s directive that the “Board is required to balance ‘the undisputed right of self-organ­ization assured to employees’ with ‘the equally undis­puted right of employers to maintain discipline in their es­tablishments.’”[viii] In conducting this balancing of rights, the Board noted “[t]he balance between employees’ right to organize and employers’ property rights ‘must be ob­tained with as little destruction of one as is consistent with the maintenance of the other.’”[ix] The Board further explained it “has long distinguished union solicitation from other types of employee activities that support union organizing.”[x] While prior Board decisions recognized that union solicitation, in the context of a union organizing campaign, “usually means” a request to sign a union authorization card, the Board stated the Wal-Mart Stores and ConAgra Foods decisions went further holding “that, in order to constitute union solicitation, the solicitor’s conduct must include the contemporaneous tender of a union authoriza­tion card.”[xi]

The Board further stated “this extremely narrow definition of ‘solicitation’ was inconsistent with long-standing Board law establishing that the act of requesting an employee to sign an authori­zation card constitutes solicitation, even if a card is not presented at the time of the conversation” and therefore “overrule[d] this aspect of the Wal-Mart and ConAgra decisions.”[xii]

In clarifying the definition of “union solicitation,” the Board held:[xiii]

…that solicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation. Such conduct constitutes union solicitation because the employee is selling or promoting the services of the union (or urging employees to reject those services). This understanding of solicitation comports both with prior Board precedent and with the dictionary definition of the word.

The Board then considered whether an actual work interruption had to occur as part of a “union solicitation.” In rejecting this requirement, the Board stated “a rule prohibiting solicitation during working time is presumed valid, and employers may law­fully discipline an employee who violates such a rule, even if the employee has not interrupted work….[and that such a requirement] interferes with the balance between em­ployees’ right to organize and ‘the equally undisputed right of employers to maintain discipline in their establish­ments’”[xiv] In concluding its analysis, the Board stated “where an employee makes statements to a coworker during working time that are in­tended and understood as an effort to persuade the em­ployee to vote a particular way in a union election, that employee has engaged in solicitation subject to discipline under an employer’s validly enacted and applied no-solic­itation policy.”

Next turning to the facts of the case before it, the Board affirmed the ALJ’s dismissal of the complaint stating “Kastroll engaged in prohibited union solici­tation on February 2 because she was encouraging another employee to vote a particular way in a union election dur­ing that employee’s working time.”[xv] 

Take Aways

The Board’s decision in Wynn provides employers with a stronger hand to discipline employees who violate published “No Solicitation” policies when they encourage co-workers during work time to support union organizational efforts even when there is no actual interruption of work. All employers should have a published no solicitation/no distribution policy that clearly explains when and where solicitation of co-workers and the distribution of material is prohibited. That said, employers must be diligent in enforcing such policies in an even-handed manner. For example, employers should not permit employees to solicit co-workers during worktime to purchase products or services that are unrelated to union organizing since this can expose the employer to unfair labor practice charges if pro-union employees are disciplined for engaging in union solicitation during worktime.

 J. Gregory Grisham is an attorney in the Memphis office of Fisher & Phillips, LLP and focuses his practice on counseling and representing employers in all aspects of labor and employment law. Greg may be reached at ggrisham@fisherphillips.com or 901-333-2076.