Trump NLRB Muzzles Union Speech at Work

June 10, 2020 by Travis West

In its recent decision in Wynn Las Vegas, LLC, 369 NLRB No. 91 (May 29, 2020), the Trump Board dramatically reduced the right of employees to discuss union organizing campaigns while on work time. The Board ruled that employers may lawfully prohibit employees from holding conversations that involve “encouraging employees to vote for or against union representation” on work time and even if the conversations do not result in any interruption in work.

This decision upends long-standing NLRB precedent. Since the 1970s, the Board has drawn a distinction between “union solicitation”, which may be restricted during work time, and other types of union speech, such as conversation about the benefits of joining a union. Solicitation was defined in the context of a union organizing campaign as “asking someone to join the union by signing his name to an authorization card.” In the early 2000s, the Board clarified that in order to constitute solicitation, the conduct in question must involve the contemporaneous tender of an authorization card. Thus, prior to Wynn, an employer could lawfully discipline employees for violating a no-solicitation policy only if the employees were actually exchanging authorization cards for signatures while on work time. Moreover, even if an employee’s conduct on work time was found to constitute solicitation, it would nevertheless remain protected by the Act if it resulted in only a “brief” interruption of an employee’s work.

The Board overturned this precedent in Wynn Las Vegas, LCC, holding that an employer may prohibit even mere conversation between employees in which one employee encourages another to vote for the union in an upcoming election. The Board reasoned that “[s]uch conduct constitutes union solicitation because the employee is selling or promoting the services of the union.” The Board also overturned the exception for solicitation that results in only a “brief” interruption of work, finding that “an actual interruption of work should not be a factor in determining whether a no-solicitation policy has been violated.”

This decision is one more example of the Trump NLRB’s continued campaign to curtail employee rights under federal labor law.

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