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ConAgra Foods, Inc. v. NLRB: Limiting Solicitation for Unions

04/27/2016

ConAgra Foods, Inc. v. NLRB: Limiting Solicitation for Unions

By Mary Kate Mullen

Introduction

The National Labor Relations Act (“NLRB Act”) Section 8(a)(1) declares that it is an unfair labor practice for employers to restrain or interfere with their employees’ rights to form unions.[1] Section 8(a)(3) prohibits employers from discriminating against employees who are members of labor unions.[2] In ConAgra Foods, Inc. v. NLRB, the Eighth Circuit considered whether three separate incidents violated NLRB Act Sections 8(a)(1) and (3). In holding that ConAgra did not commit an unfair labor practice by issuing a warning to an employee, the Eighth Circuit broadly interpreted union solicitation, threatening the bargaining power of employees.

Facts

ConAgra’s union (the “Union”) policy states that employees may not solicit union materials at “working time” or in “work areas.”[3] Here, three separate events occurred at a ConAgra plant which prompted the National Labor Relations Board (the “Board”) to file unfair labor practices against ConAgra.  First, in 2011, ConAgra removed union literature from non-working areas and prohibited union discussions at working time and work areas.[4] As a result, the Union formed a settlement agreement with ConAgra and agreed to only bring charges if ConAgra violated the agreement.[5] Second, in 2012, ConAgra posted a letter on a bulletin board which reminded employees of ConAgra’s union policy.[6]  Third, also in 2012, employee Janette Haines discussed union authorization cards with employees Megan Courtaway and Andrea Schipper on three separate occasions in the restroom.[7]  Haines also admitted to saying, “I put those cards in your locker” while on the production floor.[8]  Courtaway and Schipper agreed that Haines discussed the cards on the production floor but contended that Haines never discussed the cards at any other time or place.[9]Courtaway and Schipper reported Haines to management, and management gave Haines oral and written warnings regarding solicitation in work areas.[10]

After Haines received these warnings, the Union filed charges against ConAgra through the Board and claimed that ConAgra violated Sections 8(a)(1) and (3) by censuring Haines through their warnings.[11] The Board also contended that the posted letter violated Section 8(a).[12] Additionally, the Board alleged that the 2012 incidents violated the 2011 settlement agreement and moved for default judgment.[13] The Board found that the warnings and posted letter violated the NLRB Act and granted default judgment based on the 2011 settlement.[14]

8th Circuit Analysis

First, the Eighth Circuit found that the warnings did not violate the NLRB Act because Haines engaged in improper solicitation during working time and in a work area.[15] The court gave discretion to the Board’s assessment of credibility and, thus, adopted Haines’s version of events.[16] However, despite Haines’s discussion in the non-work area restrooms, the court found that Haines’s actions on the production floor qualified as solicitation during working time.[17]  The court reasoned that solicitation means asking someone to join a union and that Haines’s statement on the production floor demonstrated that she intended to ask Courtaway and Schipper to join a union.[18] Additionally, the court explained, if Haines’s action was protected activity, the balance of power between the employees and employer would shift drastically in favor of employees.[19] Second, the court affirmed the Board’s decision regarding the posted letter and found that it violated the NLRB Act because it was overbroad.[20] The court stated that a workplace rule is overly broad if it dissuades reasonable employees from exercising their Section 7 rights to form unions.[21] Finally, the court did not enforce the default judgment on behalf of the 2011 settlement.[22] Instead, the court remanded the 2011 issue to the Board to determine whether the posted letter constituted a violation of the 2011 settlement.[23]

Author’s Analysis

The Eighth Circuit provided a thorough analysis regarding whether or not ConAgra committed unfair labor practices.  When discussing the posted letter, the court accurately acknowledged that the posted letter is ambiguous and that a reasonable employee could interpret the letter as prohibiting the discussion of unions at all times and places.[24] If employers were permitted to produce overly broad rules, employees could misconstrue the rules and fear engaging in any form of solicitation, even solicitation at non-working time and in non-work areas. Thus, the court protected employees who often have weaker bargaining powers than their employers.

Although the court protected employees’ rights in its posted letter decision, the court failed to fully protect employees by finding that Haines’s actions on the production floor constituted solicitation.  Unlike the court, the Board found that Haines’s actions were not solicitation because she never requested that Courtaway and Schipper sign the cards and because her comment did not pose a “reasonable risk of interfering with production.”[25]Indeed, contrary to the court’s reasoning, a reasonable person could find that Haines’s comment was not intended as an encouragement for Courtaway and Schipper to sign the cards, but, rather, it was intended as a notification that the cards were in the locker. Additionally, the court ineffectively supports its conclusion with cases which differ from Haines’s alleged solicitation. In Wal-Mart Stores, Inc., an employee solicited union membership by wearing a shirt instructing other employees to “Sign a card.”[26] Here, Haines never openly asked her coworkers to sign a card during working time or in a work area. Similarly, in W.W. Grainger, Inc., the court defines solicitation as “asking someone to join the union” but not simply “talking about a union.”[27] Here, Haines clearly does not ask her employees to join a union. Instead, she informs them that the cards are in the locker. Thus, the court’s cited case law does not align with its decision that Haines solicited the signing of authorization cards by providing notice that the cards were in a locker. By broadly interpreting solicitation as the intent to ask someone to join a union, the Eighth Circuit robs employees of their already limited power of solicitation.

Conclusion

Although the Eighth Circuit properly analyzed the posted letter and 2011 settlement issues, the Eighth Circuit adopted a broad definition of solicitation when finding that ConAgra’s warnings did not constitute an unfair labor practice.  As a result, the Eighth Circuit limited Haines’ power to solicit, and this may threaten the Section 7 rights of employees in the future.


Mary K. Mullen*
Edited By Tyler Winn

Footnotes

[1] 29 U.S.C. § 158 (2006).

[2] Id.

[3] ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079, 1081 (8th Cir. 2016).

[4] Id. at 1081-82.

[5] Id. at 1082.

[6] Id. at 1082.

[7] Id. at 1082.

[8] ConAgra Foods, Inc., 813 F.3d at 1082.

[9] Id.

[10] Id. at 1083.

[11] Id. at 1083.

[12] Id.

[13] ConAgra Foods, Inc., 813 F.3d at 1083.

[14] Id. at 1084

[15] Id. at 1091.

[16] Id. at 1084.

[17] Id. at

[18] ConAgra Foods, Inc., 813 F.3d at 1089.

[19] Id. at 1088.

[20] Id. at 1091.

[21] Id. at 1091.

[22] Id. at 1091.

[23] ConAgra Foods, Inc., 813F.3d at 1091.

[24] Id. at 1091.

[25] Id. at 1085.

[26] Id. at 1089 (citing Wal-Mart Stores, Inc. v. N.L.R.B., 400 F.3d 1093, 1096 (8th Cir. 2005)).

[27] ConAgra Foods, Inc., 813 F.3d at 1089 (quoting W.W. Grainger, Inc., 229 NLRB 161, 166 (N.L.R.B. 1977) review denied, enforcement granted sub nom. W.W. Grainger, Inc. v. N.L.R.B., 582 F.2d 1118 (7th Cir. 1978)).

* Saint Louis University Law School, J.D. Candidate, 2017.