. Why was Shieldnight’s invitation to three coworkers to attend a union meeting not a form of solicitation

Circuit Judge Melloy Petitioner appeals the National Labor Relations Board’s order finding that it violated the National Labor Relations Act by punishing employee Brian Shieldnight for union solicitation. I This case arises from efforts to unionize employees at the Wal-Mart store in Tahlequah, Oklahoma. The store, like all Wal-Mart stores, maintains and enforces a policy that prohibits solicitation during employees’ work time, regardless of the cause or organization. Brian Shieldnight , an employee of the Tahlequah Wal-Mart, contacted the United Food and Commercial Workers Union, Local 1000 (“Union”) about possible union representation. He obtained authorization cards from the union to organize employees at the Tahlequah store. On January 29, 2001, Shieldnight entered the store while off-duty. He wore a T-shirt that read “Union Teamsters” on the front and “Sign a card . . . Ask me how!” on the back. Assistant Store Manager John Lamont and Assistant Night Manager Tammy Flute saw Shieldnight’s T-shirt and saw him speak to an associate. Flute told the associate to return to work, and Lamont ordered Shieldnight to leave associates alone. Lamont then consulted a Wal-Mart “union hotline.” The hotline representative told Lamont that Shieldnight’s shirt constituted solicitation and that Shieldnight should be removed from the store. Lamont and Flute sought out Shieldnight . They found him in the jewelry department talking to two friends who were not associates. Lamont informed Shieldnight that his shirt constituted a form of solicitation and that he would have to leave the store immediately. Lamont escorted Shieldnight to the front door of the store and instructed him to leave the store and Wal-Mart property. The next incident occurred on January 30, 2001. While on duty at the store, Shieldnight invited Department Manager Debra Starr and associates Patricia Scott and James Parsons, all of whom were also on duty, to a union meeting. Shieldnight asked Starr to come to the meeting and stated that he would like her to consider signing a union authorization card. Shieldnight separately asked Scott and Parsons to attend the meeting to hear “the other side of the story.” Based on these two incidents, Co-Manager Rick Hawkins and Assistant Manager John Lamont held a written “coaching session” with Shieldnight for violating the no-solicitation rule. A “coaching session” is part of Wal-Mart’s progressive discipline process. Verbal coaching and written coaching are the first two steps in a four-step process. Hawkins and Lamont explained to Shieldnight that he had violated the solicitation policy on January 29 by soliciting on the sales floor with his T-shirt and on January 30 by verbally soliciting employees while on-duty and on the sales floor. Lamont told Shieldnight that it was wrong to have sent Shieldnight off Wal-Mart property completely. Lamont clarified that while Shieldnight could not solicit on the sales floor, he could do so in the parking lot while not on duty. Hawkins, Lamont, and Shieldnight also discussed Shieldnight’s questions and concerns regarding Wal-Mart employment policies, such as health insurance for associates. Lamont suggested Shieldnight should raise the matter in “grassroots” meetings that all Wal-Mart stores hold to identify the top three companywide issues. The three men arranged a time to meet in the future. That meeting never occurred. The union subsequently filed an unfair labor practice charge against Wal-Mart. . . . [A] divided Board panel found that Shieldnight had not engaged in solicitation when he (1) wore the T-shirt during his shift; (2) asked on-duty employees to attend a union meeting; or (3) asked a coworker to sign a union card. . . . Wal-Mart appeals. . . . II * * * * * A. The T-Shirt The union contends that Shieldnight’s T-shirt did not constitute solicitation, but rather was a “union insignia.” Wal-Mart argues that by encouraging people to approach him, Shieldnight’s T-shirt was a form of solicitation. In NLRB v. W.W. Grainger, Inc., the board held, “Solicitation” for a union usually means asking someone to join the union by signing his name to an authorization card in the same way that solicitation for a charity would mean asking an employee to contribute to a charitable organization . . . or in the commercial context asking an employee to buy a product or exhibiting the product for him. . . . Ordinarily, employees may wear union insignia while on their employer’s premises. . . . The board stated that the T-shirt should be treated as union insignia because “it did not ‘speak’ directly to any specific individual . . . and it did not call for an immediate response, as would an oral person-to-person invitation to accept or sign an authorization card.” The board found that there was “no claim or evidence that Shieldnight did anything in furtherance of the T-shirt message. . . . He merely walked around and socialized. . . about nonunion matters.” Anyone, including any Wal-Mart employee who saw Shieldnight was free to ignore both Shieldnight and the message on the T-shirt. In contrast, a solicitation to sign an authorization card requires more interaction, likely a direct yes or no answer. Absent further evidence of direct inquiry by Shieldnight , the board’s conclusion was supported by substantial evidence. Wal-Mart alleges that the panel’s conclusion is not reasonable because it ignores both Shieldnight’s purpose and the long-held rule that an employer may implement rules against solicitation during work time to prevent interference with work productivity. C. Asking Coworker to Sign a Card The board concluded that it was not solicitation when Shieldnight asked a coworker to sign a union authorization card. . . . In light of the totality of the circumstances, Shieldnight’s actions constituted solicitation even though he did not actually offer Starr a card at the time he asked her to sign. Shieldnight had contacted the union about obtaining union representation and had obtained cards from the union for the purpose of organizing employees at the Tahlequah store. There is little doubt as to Shieldnight’s intent in the words he spoke to Starr. The record indicates that Shieldnight did not have a card in his hand at the time he spoke to Starr. It is silent as to whether he had a card on his person. The fact that he did not place a card directly in front of Starr at the time of his statement makes little difference in regard to the nature of his conversation. Further, Shieldnight’s actions in this instance are more analogous to a direct solicitation than when he asked his coworkers to attend the union meeting. Asking someone to sign a union card offers that individual person the choice to be represented by a union. Informing coworkers about a union meeting merely puts fellow employees on notice that a meeting is going to take place. Accordingly, there is insufficient evidence to support the board’s conclusion that Shieldnight’s actions were not solicitation, and thus we reverse the board regarding the authorization card issue. * * * * * Questions 1. Why was the T-shirt not a form of solicitation? 2. Why was Shieldnight’s invitation to three coworkers to attend a union meeting not a form of solicitation, whereas asking a coworker to sign a card was considered impermissible solicitation?


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