CONAGRA FOODS, INC.

National Labor Relations Board - Board Decisions

Nov 21, 2014

361 N.L.R.B. 944 (N.L.R.B. 2014)

944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conagra Foods, Inc. and United Food and Commer-
cial Workers Union, Local 75. Cases 09–CA–
089532, 09–CA–090873, 09–CA–062889, 09–CA–
062899, and 09–CA–068198
November 21, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
On May 9, 2013, Administrative Law Judge Arthur J.
Amchan issued the attached decision in Cases 09–CA–
089532 and 09–CA–090873, finding that the Respondent
engaged in certain unfair labor practices. The Respond-
ent filed exceptions to the judge’s decision and a sup-
porting brief, the General Counsel filed an answering
brief, and the Respondent filed a reply brief.
On May 17, 2013, the General Counsel filed a Motion
for Default Judgment and a memorandum in support of
the motion in Cases 09–CA–062889, 09–CA–062899,
and 09–CA–068198. On the same date, the General
Counsel also filed an unopposed Motion to Consolidate
the Motion for Default Judgment in Cases 09–CA–
062889,09–CA–062899, and 09–CA–068198 with Cases
09–CA–089532 and 09–CA–090873 (“Motion to Con-
solidate”). The allegations in Cases 09–CA–062889, 09–
CA–062899, and 09–CA–068198 were initially resolved
when the parties entered into an informal settlement
agreement, which was approved by the Regional Director
for Region 9 in 2011. Subsequently, the Regional Direc-
tor set aside the settlement agreement and issued a con-
solidated complaint reviving the allegations in those
three cases, and the General Counsel filed the instant
Motion for Default Judgment, on the grounds that the
Respondent violated the terms of the agreement by en-
gaging in the postsettlement conduct alleged in Cases
09–CA–089532 and 09–CA–090873.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
We grant the General Counsel’s unopposed Motion to
Consolidate. We address first the judge’s findings con-
cerning the alleged postsettlement unfair labor practices
before considering whether the misconduct, if proven,
constitutes a basis for granting the General Counsel’s
Motion for Default Judgment.
I. THE ALLEGED POSTSETTLEMENT UNFAIR LABOR
PRACTICES: CASES 09–CA–089532
AND 09–CA–090873
We have considered the judge’s decision and the rec-
ord in Cases 09–CA–089532 and 09–CA–090873 in light
1 Member Johnson is recused and took no part in the consideration
of this case.
of the exceptions and briefs and have decided to affirm
the judge’s rulings, findings,2 and conclusions and to
adopt the recommended Order as modified and set forth
in full below.3
1. As more fully explained in the judge’s decision, this
case arises in the context of a campaign by the United
Food and Commercial Workers, Local 75 to organize
employees at the Respondent’s food processing plant in
Troy, Ohio. Janette Haines, who worked the third shift
at the Respondent’s facility, was an active and open un-
ion supporter. In September 2012, Haines encountered
second-shift employees Andrea Schipper and Megan
Courtaway in the restroom and asked them if they would
sign authorization cards; Schipper and Courtaway indi-
cated that they would. A few days later, again in the
restroom, Schipper gave Haines the number of the locker
that she and Courtaway shared so that Haines could place
the authorization cards inside. Subsequently, as Haines
walked past Courtaway and Schipper on the production
floor, she informed them that she had placed the cards in
their locker. According to the credited testimony, Haines
did not ask either Courtaway or Schipper to sign authori-
zation cards and had no cards on her person. She merely
informed her coworkers that she had done what she told
them she would do, i.e., leave cards in a locker.4 At the
time, Schipper was waiting for the production line to
start. Courtaway was cleaning, and she stopped cleaning
momentarily when Haines spoke to her. Haines made no
attempt to have Schipper or Courtaway sign cards at that
moment, and the interaction lasted no more than a few
seconds. Courtaway reported the exchange to her lead-
person. Thereafter, the Respondent issued Haines a ver-
bal warning for violating its no-solicitation policy.
The judge concluded that the Respondent violated Sec-
tion 8(a)(3) and (1) by issuing the warning. First, the
judge found that the warning was discriminatory, reflect-
ing animus toward earlier protected concerted activity by
2 No exceptions were filed to the judge’s recommended dismissal of
the allegation that the Respondent violated Sec. 8(a)(1) by telling em-
ployees they could not discuss the Union on working time.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 We will modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language. We will also
substitute a new notice to conform to the Order as modified and in
accordance with Durham School Services, 360 NLRB 694 (2014).
4 To the extent our dissenting colleague’s characterization of the
facts implicitly challenges these factual findings, as previously stated,
we find no basis for reversing the judge’s findings.
361 NLRB No. 113

CONAGRA FOODS, INC. 945
Haines, a “vocal and active supporter of the Union” in
the judge’s words. Second, the judge concluded that
Haines’ conduct did not constitute solicitation under
Board law. We agree that Haines’ conduct did not con-
stitute solicitation.5
The lawfulness of the Respondent’s no-solicitation
policy is not at issue. Here we are concerned with the
Respondent’s application of that policy to Haines. A
lawful no-solicitation policy, of course, may not be ap-
plied for unlawful reasons. See Heck’s, Inc., 156 NLRB
760, 761–763 (1966) (finding discharges unlawful where
violation of no-solicitation rule was pretext), enfd. 386
F.2d 317 (4th Cir. 1967). We agree with the judge that
the Respondent could not lawfully apply its policy to the
conduct in which Haines engaged because her conduct
did not constitute solicitation. Our dissenting colleague
would find that Haines was lawfully disciplined for solic-
itation. He argues, in effect, that an employer may law-
fully discipline employees for any mention of union au-
thorization cards during working time, particularly where
an employee stops working, however briefly. The Re-
spondent has made no such argument in its exceptions.
In any event, as we now explain, our colleague’s position
is contrary to well-established Board precedent.
The Board has long recognized the principle that
“[w]orking time is for work,” and thus has permitted
employers to adopt and enforce rules prohibiting solicita-
tion during working time, absent evidence that the rule
was adopted for a discriminatory purpose. Peyton Pack-
ing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009
(5th Cir. 1944), cert. denied 323 U.S. 730 (1944). But,
as our colleague’s position demonstrates, the application
of those principles requires determining what is, and is
not, solicitation. On that point, the Board has consistent-
ly held that “‘[s]olicitation’ for a union usually means
asking someone to join the union by signing his name to
5 In finding that the warning issued to Haines was unlawful, Chair-
man Pearce does not rely on the judge’s further finding that the Re-
spondent was discriminatorily motivated by animus against Haines’
prior union activity. Where the reason an employee was disciplined is
in dispute, evidence of antiunion animus is relevant to an analysis under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), to determine whether the
discipline was unlawful. But where, as here, there is no dispute that the
employee was disciplined for engaging in union activity, and the sole
issue is whether that activity constituted solicitation subject to lawful
prohibition, there is no need to adduce evidence or make findings con-
cerning antiunion animus.
Member Schiffer agrees that evidence of antiunion motivation is not
necessary in these circumstances. Nevertheless, in addition to finding
that Haines’ conduct did not constitute solicitation, Member Schiffer
would also find, in agreement with the judge, that the Respondent’s real
motivation for disciplining Haines was its hostility toward her earlier
protected concerted activity and that her October 2 conduct was seized
on by the Respondent as a pretext for such retaliation.
an authorization card” at that time. W. W. Grainger, Inc.,
229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th
Cir. 1978); Farah Mfg. Co., 187 NLRB 601, 602 (1970)
(the presentation of an authorization card is an “integral
and important part of the solicitation process”); see also
Wal-Mart Stores, 340 NLRB 637, 638–639 (2003) (em-
ployee did not engage in solicitation by stating she would
like coworkers to consider signing authorization card
where no card was tendered at the time), enf. denied in
relevant part 400 F.3d 1093 (8th Cir. 2005); Opryland
Hotel, 323 NLRB 723, 731 (1997) (asking employee to
attend union meeting not solicitation); Lamar Industrial
Plastics, 281 NLRB 511, 513 (1986) (asking employee if
she had an authorization card not solicitation). As the
Board has explained, drawing the “solicitation” line at
the presentation of a card for signature makes sense be-
cause it is that act which “prompts an immediate re-
sponse from the individual or individuals being solicited
and therefore presents a greater potential for interference
with employer productivity if the employees are sup-
posed to be working.” Wal-Mart, above, 340 NLRB at
639.
In line with this precedent, Haines’ statement on the
production floor that she had placed authorization cards
in her fellow employees’ locker did not constitute “so-
licitation.” There was no request, i.e., no solicitation of
Schipper and Courtaway to sign cards during this brief
interaction, and there were no cards presented for their
signature. Instead, Haines simply informed Schipper and
Courtaway that the authorization cards they had already
agreed to sign (in a conversation in the restroom during a
break) were in their locker. Cf. Lamar Industrial Plas-
tics, above. Unlike the conduct found to be solicitation
in prior cases, Haines’ comment was not a request to take
any action and posed no reasonable risk of interfering
with production because it did not call for a response of
any kind. Indeed, her information was conveyed in, at
most, a few seconds. Accordingly, the Respondent vio-
lated Section 8(a)(3) when it issued Haines a verbal
warning because she engaged in protected union activity.
There is no support—in case law or in logic—for the
dissent’s view that merely providing information to
coworkers constitutes solicitation.6 Nor does a momen-
tary interruption in work, or even a risk of interruption,
subject employees to discipline for conveying such un-
ion-related information. Instead, the Act allows employ-
ees to make union-related statements such as the one
Haines made, which do not “occupy enough time to be
6 We are not convinced to overrule precedent by our colleague’s
analogies to criminal activities involving drug sales and prostitution
which, in any event, we do not consider proper analogies to lawful
union activity among coworkers.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
treated as a work interruption in most work settings.”
Wal-Mart, above, 340 NLRB at 639. The balance thus
struck between employee and employer rights is more
faithful to the principles set forth in Republic Aviation7
than one that turns an informative statement about
cards—to employees who had already agreed to sign
them—into a solicitation.8
We are puzzled by our colleague’s suggestion that our
view of union solicitations injects uncertainty into a set-
tled area of law. On the contrary, we have described
well-established precedent clarifying the distinction be-
tween solicitation on one hand, and union-related con-
versations on the other, and the basis for that distinction.
Further, we observe that drawing a line at the actual mak-
ing of a request, accompanied by the presentation of a
card for signature provides much clearer guidance to
employees, employers, and unions alike. This approach
provides far more certainty than the dissent’s position,
under which any workplace conversation related to union
authorization cards, perhaps even including what such a
card is, is potentially subject to discipline as a “solicita-
tion.” That view is unjustifiable under any view of the
law.9
2. In addition, we adopt the judge’s finding that the
Respondent violated Section 8(a)(1) by posting and
maintaining an overly broad rule restricting “discussions
about unions.” On April 30, 2012, the Respondent post-
7 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
8 Indeed, the Eighth Circuit effectively endorsed this view in its
opinion in the Wal-Mart case, upholding the Board’s determination that
issuing an invitation to a union meeting was not solicitation but rather
“more akin to a statement of fact” that “did not require an immediate
response” and “[did] not occupy enough time to be treated as a work
interruption in most settings.” Wal-Mart Stores, Inc. v. NLRB, 400
F.3d 1093, 1099 (8th Cir. 2005). That exactly describes Haines’ com-
ment to her coworkers that the authorization cards were in their locker.
It was a statement of fact, it did not require an immediate response, and
it occupied too little time to be treated as a work interruption.
We reject our colleague’s suggestion that we are adopting “special-
ized definitions” of “solicitation” and “working time.” As to the for-
mer, we simply construe “solicitation” as our cases have construed it
before—i.e., as requiring something more than a bare mention of an
authorization card. As to the latter, we do not claim that the employees
were not on “working time.” Rather, we find it immaterial whether
they were or were not, given that the conduct for which Haines was
disciplined did not constitute solicitation. We do not inaugurate “a new
reality,” as our colleague would have it, in which “solicitation is pro-
hibited and permitted at the same time.” We do not disturb long-settled
precedent holding that solicitation during working time may be prohib-
ited by a valid no-solicitation policy

9 Our dissenting colleague cites to certain proposals contained in the
Board’s Notice of Proposed Rule Making (“NPRM”) —
Representation-Case Procedures, which issued on February 6, 2014.
The Board has taken no final action on the NPRM, and speculation
regarding the views of the Board or any of its Members as to the issu-
ance and/or contents of a possible final Rule is both premature and
outside the proper scope of this adjudication.
ed a letter stating in part: “We also wish to remind em-
ployees that discussions about unions are covered by our
Company’s Solicitation policy. That policy says that
solicitation for or against unions or other organizations
by employees must be limited to nonworking times.”10
Under Lutheran Heritage Village-Livonia, 343 NLRB
646, 646–647 (2004), a rule is unlawful if it explicitly
restricts Section 7 activity or if (1) employees would
reasonably construe the rule to prohibit Section 7 activi-
ty; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.
In agreement with the judge, we find that the April 30
letter was unlawful because employees would reasonably
construe it to prohibit all discussions about unions during
working time. The letter singles out “discussions about
unions,” states that such discussions are “covered by” the
Respondent’s solicitation policy, and summarizes that
policy as restricting solicitation to nonworking time. The
letter neither defines “solicitation” nor explains the rela-
tionship between “discussions” about unions and “solici-
tation” for or against unions. Some discussions about
unions, indeed, most discussions about unions, are just
that—discussions, not solicitations. The unmistakable
message of the letter is that such discussions are “cov-
ered by” the solicitation policy and hence forbidden dur-
ing working time. Thus, the letter fails to negate the
plain inference that all discussions about unions are
“covered by” a policy that prohibits such discussions
during working time. Because the rule, as reasonably
interpreted, prohibits protected discussions about unions,
we agree with the judge that the April 30 letter is unlaw-
fully overbroad.11 Moreover, the Respondent allows
employees to discuss other nonwork-related matters on
working time. See Jensen Enterprises, 339 NLRB 877,
878 (2003) (an employer violates Sec. 8(a)(1) when it
10 The Respondent excepts to the judge’s decision to grant the Gen-
eral Counsel’s motion to amend the complaint to include an additional
allegation based on the April 30 letter, which the Respondent intro-
duced into evidence at the hearing. Although we do not rely on the
judge’s characterization of the General Counsel’s motion to amend as
one to conform the pleadings to the evidence, we affirm the judge’s
decision to grant the motion. The judge properly analyzed the factors
relevant to a motion to amend a complaint and did not abuse his discre-
tion in granting the motion. See Pincus Elevator & Electrical Co., 308
NLRB 684, 685 (1992) (observing that under Sec. 102.17 of the
Board’s Rules and Regulations, an administrative law judge has wide
discretion to grant or deny motions to amend a complaint), enfd. mem.
998 F.2d 1004 (3d Cir. 1993).
11 In his analysis, the judge concludes that the letter is unlawful be-
cause it “can” reasonably be construed to prohibit protected activity.
We clarify that the Board’s test under the first prong of the Lutheran
Heritage Village standard is whether employees “would” reasonably
construe the rule to prohibit protected activity. As explained above, we
find that they would.

CONAGRA FOODS, INC. 947
permits employees to discuss nonwork-related subjects
during working time but prohibits discussion of union-
related matters).
Our dissenting colleague argues that employees would
understand the letter as nothing more than a reminder of
the Respondent’s solicitation policy. The letter does
refer to that policy, but that is not all it does. It states,
categorically, that “discussions about unions are cov-
ered” by that policy12 In our view, a reasonable employ-
ee would read the letter to sweep all union discussions
within the scope of the Respondent’s solicitation policy,
especially in light of the Respondent’s vigorous efforts to
restrict such discussions as detailed herein. See The
Roomstore, 357 NLRB No. 143, slip op. at 1 fn. 3 (2011)
(employer’s repeated warnings to employees provided
authoritative meaning to its unlawful rule). At the very
least, the Respondent’s letter created an ambiguity con-
cerning the relationship between its restrictive solicita-
tion policy and union discussions while working. Any
ambiguity in the letter must be construed against the Re-
spondent. See, e.g., Lafayette Park Hotel, 326 NLRB
824, 828 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir.
1999).
II. THE GENERAL COUNSEL’S MOTION FOR DEFAULT
JUDGMENT: CASES 09–CA–062889, 09–CA–062899,
AND 09–CA–068198
Background
Having found that the Respondent committed certain
postsettlement violations, we turn to the General Coun-
sel’s Motion for Default Judgment. Upon an August 17,
2011 charge, an October 27, 2011 first amended charge,
a second August 17, 2011 charge, and a November 4,
2011 charge filed by the United Food and Commercial
Workers Union, Local 75, the Charging Party and the
Respondent entered into an informal settlement agree-
ment, which was approved by the Regional Director for
Region 9 on November 30, 2011. Pursuant to the terms
of the settlement agreement, the Respondent agreed,
among other things, to refrain from (1) enforcing its so-
licitation/distribution policy in an overly broad manner
by applying it to nonwork areas and nonworktime; (2)
advising its employees that they may not discuss and
voice their opinions on union-related issues in work areas
and/or during working time; and (3) interfering with,
restraining, or coercing its employees in the exercise of
their Section 7 rights in any like or related manner. The
12 The dissent misconstrues our analysis. We are not saying that
“covered” means “prohibited.” Rather, using our dissenting col-
league’s own dictionary definitions, it is clear that the letter specifically
says discussions about unions are “dealt” within the Employer’s no-
solicitation policy, which expressly limits such conduct to non-working
time.
settlement agreement also contained the following non-
compliance provision:

The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue the complaint that will include the allegations
spelled out above in the Scope of the Agreement sec-
tion. Thereafter, the General Counsel may file a mo-
tion for default judgment with the Board on the allega-
tions of the complaint. The Charged Party understands
and agrees that the allegations of the aforementioned
complaint will be deemed admitted and it will have
waived its right to file an Answer to such complaint.
The only issue that may be raised before the Board is
whether the Charged Party defaulted on the terms of
this Settlement Agreement. The Board may then, with-
out necessity of trial or any other proceeding, find all
allegations of the complaint to be true and make find-
ings of fact and conclusions of law consistent with
those allegations adverse to the Charged Party, on all
issues raised by the pleadings. The Board may then is-
sue an order providing a full remedy for the violations
found as is appropriate to remedy such violations. The
parties further agree that a U.S. Court of Appeals
Judgment may be entered enforcing the Board order ex
parte after service or attempted service upon Charged
Party/Respondent at the last address provided to the
General Counsel.

Thereafter, the Union filed separate charges against the
Respondent in Cases 09–CA–089532 and 09–CA–
090873 on September 18 and October 5, 2012, respec-
tively. By email on December 18, 2012, the Regional
Director notified the Respondent that by engaging in the
conduct alleged in those charges, the Respondent was in
noncompliance with the settlement agreement. The letter
urged the Respondent to remedy its noncompliance by
approving a proposed second settlement agreement. The
letter advised that unless the Respondent remedied its
noncompliance, a complaint would issue and a motion
for default judgment regarding the allegations initially
resolved by the settlement agreement would be filed.
The Respondent did not reply.
Accordingly, on January 17, 2013, the Regional Direc-
tor issued a consolidated complaint. On May 17, 2013,
the General Counsel filed a Motion for Default Judgment
and supporting memorandum with the Board. On May
21, 2013, the Board issued an order transferring the pro-
ceeding to the Board and Notice to Show Cause why the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
motion should not be granted. The Respondent filed an
opposition to the General Counsel’s motion, and the
General Counsel filed a response.
Ruling on Motion for Default Judgment
In its opposition to the General Counsel’s motion, the
Respondent claims that the conduct alleged in Cases 09–
CA–089532 and 09–CA–090873 is not a proper basis for
finding a breach of the settlement agreement. The Re-
spondent argues that its discipline of Haines falls outside
the agreement’s specific prohibition against disciplining
employees “for engaging in solicitation/distribution in
non-work areas and during non-work time” (emphasis
added) because Haines was disciplined for conduct oc-
curring on working time. That argument is unavailing.
The Respondent’s unlawful application of its solicitation
policy to Haines’ protected activity constituted the same
type of conduct as previously alleged: enforcing its solic-
itation policy in an overly broad manner, and conse-
quently disciplining Haines. Moreover, even assuming
the discipline of Haines lies outside the precise limits of
the agreement’s specific prohibitions, the Respondent
agreed to cease and desist from interfering with, restrain-
ing, or coercing its employees in the exercise of their
Section 7 rights in any manner “like or related” to those
specific prohibitions. The discipline of Haines is at the
very least like or related to conduct specifically prohibit-
ed under the settlement agreement. Thus, we conclude
that the Respondent’s unlawful discipline of Haines
breached the terms of the settlement agreement. Conse-
quently, pursuant to the noncompliance provisions of the
settlement agreement set forth above, we find that all of
the allegations in the consolidated complaint in Cases
09–CA–062889, 09–CA–062899, and 09–CA–068198
are true. Accordingly, we grant the General Counsel’s
Motion for Default Judgment.13
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation
with an office and place of business in Troy, Ohio (the
Respondent’s facility), has been engaged in the business
of food processing and distribution. In conducting its
business operations during the 12-month period ending
December 31, 2012, the Respondent sold and shipped
goods valued in excess of $50,000 directly to places out-
side of Ohio.
13 Because the Respondent’s discipline of Haines constitutes a suffi-
cient basis upon which to grant the General Counsel’s motion, we find
it unnecessary to reach the Respondent’s argument that the unlawful
April 30 letter concerning its solicitation policy is an improper basis for
granting the motion.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union, United Food and
Commercial Workers Union, Local 75, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:

Nikki Fry – Production Manager
Todd Setser – Sanitation Supervisor
Bo Smith – Sanitation Supervisor
Scott Burns – Production Supervisor
Mike Speck – Maintenance Supervisor

1. At all material times, the Respondent has main-
tained the following rule (the solicitation/distribution
rule):

In the interest of all associates and [the Respondent], no
solicitation or distribution of non-business related ma-
terial is allowed during work time or in work areas. So-
licitation may include solicitation for funds or contribu-
tions for organizations from customers, associates, or
persons from other firms doing business with [the Re-
spondent], baseball pools, raffles, the sale of cosmetics,
etc. In addition, trespassing, soliciting or distributing
literature by any non-associate on [the Respondent’s]
property is prohibited.

2. On various dates, the Respondent enforced the solic-
itation/distribution rule selectively and disparately. Spe-
cifically,

(a) About August 16, 2011, the Respondent, by Nikki
Fry,
(i) prohibited employees from signing authoriza-
tion cards in the “smoke pad” area;
(ii) removed union literature from the break
room;
(iii) prohibited employees from reading union
literature in the break room;
(iv) told employees it was against the Respond-
ent’s policy for them to read union literature in
the break room; and
(v) took union literature from employees in the
break room.
(b) The Respondent, by Bo Smith,

CONAGRA FOODS, INC. 949
(i) about August 16, 2011, removed union litera-
ture from the break room and threw the literature
in trash containers, and
(ii) about August 22, 2011, removed union liter-
ature from the break room.
(c) About August 22, 2011, the Respondent, by Scott
Burns,
(i) removed union literature from the break room
and threw the union literature in trash containers,
and
(ii) attempted to take union literature from an
employee in the break room.

3. About September 2011, the Respondent, by distrib-
uting to employees and posting on its bulletin boards,
promulgated the following rule:

Employees of [the Respondent] are entitled to discuss
and voice their opinions on union-related issues as long
as it is not in working areas and/or during work time.

4. (a) About August 16, 2011, the Respondent issued a
verbal warning to employee Janette Haines.
(b) About August 17, 2011, the Respondent issued a
written warning to employee Janette Haines.
(c) The Respondent engaged in the conduct described
above in paragraphs 4(a) and (b) because employee
Haines formed, joined or assisted the Union and en-
gaged in concerted activities, and to discourage em-
ployees from engaging in these activities.
CONSOLIDATED CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
the entire record in this consolidated case, we amend the
administrative law judge’s conclusions of law consistent
with our findings herein, as follows.
1. The Respondent violated the terms of the settlement
agreement entered into in disposition of Cases 09–CA–
062889, 09–CA–062899, and 09–CA–068198 by issuing
an unlawful verbal warning to employee Janette Haines
on October 2, 2012, because she engaged in union activi-
ties. Accordingly, the settlement agreement is vacated
and set aside.
2. By the conduct described above in part II, para-
graphs 2 and 3, the Respondent violated Section 8(a)(1)
of the Act.
3. By the conduct described above in part II, paragraph
4, the Respondent violated Section 8(a)(3) and (1) of the
Act.
4. By issuing Janette Haines a verbal warning on Oc-
tober 2, 2012, because she engaged in union activities,
the Respondent violated Section 8(a)(3) and (1) of the
Act.
5. The Respondent violated Section 8(a)(1) of the Act
by posting the following rule on April 30, 2012:

We also wish to remind employees that discussions
about unions are covered by our Company’s Solicita-
tion policy. That policy says that solicitation for or
against unions or other organizations by employees
must be limited to non-working times.

6. The Respondent’s unfair labor practices described
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the
Respondent unlawfully issued verbal and written disci-
plinary warnings to Janette Haines, we shall order the
Respondent to rescind the warnings issued to Janette
Haines on August 16 and 17, 2011, and on October 2,
2012. Having found that the Respondent maintained
overly broad work rules regarding its solicitation policy,
we shall order the Respondent to cease and desist, to
rescind the unlawful rules, and to advise employees in
writing that the unlawful rules are no longer being main-
tained.
ORDER
The Respondent, ConAgra Foods, Inc., Troy, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining rules that prohibit
employees from discussing union-related issues during
working time and/or in work areas.
(b)Removing union literature from nonwork areas.
(c) Prohibiting employees from reading union litera-
ture, taking or attempting to take union literature from
employees, or informing employees that it is against
company policy for employees to read union literature.
(d) Prohibiting employees from signing authorization
cards on nonworktime and in nonwork areas.
(e) Disciplining employees because they engage in un-
ion activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its September 2011 and April 30, 2012
rules prohibiting employees from discussing union-
related issues in working areas and/or during worktime,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 950
and advise employees in writing that these unlawful rules
are no longer being maintained.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings is-
sued to Janette Haines, and within 3 days thereafter, noti-
fy her in writing that this has been done and that the
warnings will not be used against her in any way.
(c) Within 14 days after service by the Region, post at
its Troy, Ohio facility copies of the attached notice
marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since August 16, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER MISCIMARRA, dissenting in part.
The permissible scope of no-solicitation policies in-
volves one of the most understandable, well-established
labor law doctrines applied by the Board and the courts.
See, e.g., Peyton Packing, 49 NLRB 828, 843 (1943),
enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323
U.S. 730 (1944) (“Working time is for work.”). Con-
versely, significant confusion has resulted from the
Board’s treatment of other requirements and policies
under the standard articulated in Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646, 646–647 (2004) (holding a
policy unlawful if “employees would reasonably con-
strue the language to prohibit Section 7 activity”). The
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
present case involves both sets of issues, and as to both, I
respectfully dissent from the conclusions reached by my
colleagues.
Regarding the first issue, Respondent maintains a no-
solicitation policy that lawfully prohibits “solicitation”
during “working time.”1 My colleagues recognize (as
they must) that this policy is lawful, but they effectively
invalidate any enforcement of the policy unless an em-
ployee displays or presents a union authorization card.
Here, my colleagues adopt narrow, non-dictionary mean-
ings for “solicitation” and “working time” that depart
from the decades-old treatment of no-solicitation rules by
the Board and the courts. Moreover, the approach adopt-
ed by my colleagues will make it impossible for anyone
to know in advance whether, where and what type of
“solicitation” is prohibited under lawful no-solicitation
policies. This is an unfortunate development in an im-
portant 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.
Regarding the second issue, my colleagues find that
the Respondent violated the Act by posting a letter that
reminded employees about its lawful no-solicitation poli-
cy. Although the majority relies on Lutheran Heritage
Village, which invalidates employer policies and rules if
“employees would reasonably construe the language to
prohibit Section 7 activity,”2 my colleagues adopt an
interpretation of the disputed letter that is not reasonable.
I do not believe an employer violates Section 8(a)(1) by
posting a letter that merely reminds employees about a
lawful no-solicitation rule.3
A. Background
The relevant facts here are straightforward. The Re-
spondent operates a food production facility (where,
among other things, “Slim Jim” meat sticks are made).
1 The no-solicitation policy also prohibits solicitation “in a work area
on employee’s own time,” and by “all non-employees.” The General
Counsel did not allege that any aspect of the policy was unlawful.
2 I have previously expressed my disagreement with this prong of the
Lutheran Heritage Village standard. See, e.g., MCPc, Inc., 360 NLRB
216, 216 fn. 4 (2014); California Institute of Technology Jet Propulsion
Laboratory, 360 NLRB 504, 504 fn. 1 (2014). Because I believe the
Respondent’s letter in this case should be deemed lawful even under
the Lutheran Heritage Village “reasonably construe” test, this case does
not provide an opportunity to articulate an alternative standard. How-
ever, I hope that the Board will articulate an alternative standard in an
appropriate future case.
3 Because I find that the Respondent did not commit these alleged
postsettlement unfair labor practices, I would deny the General Coun-
sel’s Motion for Default Judgment. However, I concur with my col-
leagues regarding our decision to grant the General Counsel’s unop-
posed to Consolidate the Motion for Default Judgment in Cases 09–
CA–062889, 09–CA–062899, and 09–CA–68198 with Cases 09–CA–
089532 and 09–CA–090873. I also join them in affirming the judge’s
decision to grant the General Counsel’s motion to amend the complaint.

CONAGRA FOODS, INC. 951
The Respondent maintains a no-solicitation policy that
lawfully prohibits “solicitation during working time.” In
September 2012, employee Janette Haines started solicit-
ing employees Megan Courtaway and Andrea Schipper
to sign union authorization cards. As part of this solicita-
tion, Haines placed cards in the locker shared by Cour-
taway and Schipper.
At some point, Haines approached Courtaway and
Schipper at their workstations during working time for
all three employees. As to what happened next, the
judge “credit[ed] the testimony of Haines and . . . Schip-
per, and specifically credit[ed] Schipper’s testimony to
the minimal extent that it conflict[ed] with that of . . .
Courtaway.”
Haines testified that, at the time, she worked in the
“sanitation department” (Tr. 260–261), she had obtained
her “cleaning supplies . . . out of the sanitation cage” (Tr.
274), and she encountered Courtaway and Schipper “be-
tween two machines” in their work area (“optics”) while
Haines was going to her work area (the “smokehouse”)
(id.). Haines’ testimony also included the following ex-
change on cross-examination:

Q. Ms. Haines, . . . when you talked to them on
the production floor . . . at that time you were walk-
ing to your work area; isn't that right?
A. Yes.
Q. You were working; isn't that correct?
A. Yes.
Q. Isn't it correct that [Courtaway] was working?
A. Yes.
Q. Isn't it correct that [Schipper] was also work-
ing?
A. Yes.

[Tr. 285–286.]
Courtaway’s job also involved “cleaning,” and Cour-
taway testified that, when approached by Haines, Cour-
taway “was cleaning” while “on the production floor”
(Tr. 350). She was asked, “Did you have to stop work-
ing?” She responded, “Yes.” (Id.)
Schipper’s work involved “cutting” meat sticks on the
production line. She testified that the exchange between
Haines and Courtaway (which Schipper observed and
heard) occurred “on the production floor” while Schipper
was “waiting to cut on the line,” although “the line
wasn’t running yet” (Tr. 358–359).
The record is unclear about precisely what Haines said
to Courtaway in Schipper’s presence during the produc-
tion line encounter. Schipper and Courtaway testified
that Haines approached them on the production line be-
fore Haines placed three union authorization cards in the
locker shared by Schipper and Courtaway. According to
Schipper and Courtaway, Haines said that “she was go-
ing to put three union cards in [the] locker for [Schipper
and Courtaway] to sign, and [Courtaway’s] husband to
sign” (emphasis added).4 However, Haines testified that
(i) she had previously advised Schipper and Courtaway
(on two occasions when seeing them in the ladies’ room)
that the three authorization cards needed to be signed,
and Haines would place three cards in the shared locker
(Tr. 271–273), and (ii) Haines indicated during the pro-
duction line conversation that she had placed the three
cards in the locker as previously promised (Tr. 274). The
judge credited the testimony of Haines and Schipper
(and, to a lesser degree, Courtaway) without acknowl-
edging this conflicting testimony, but the judge’s de-
scription tracks Haines’ version of events.
This detailed description of the record and the judge’s
credibility findings makes clear three uncontroverted
facts. First, the discussion between Haines and Courta-
way (which Schipper observed and heard) was relatively
short. Second, the subject of the conversation involved
union authorization cards that Haines wanted to have
signed by Courtaway, Courtaway’s husband, and Schip-
per. Third, the exchange occurred during the “working
time” of all three employees, and it interrupted or short-
ened the “work” performed by two employees, Haines
and Courtaway.5
B. The Warning Received by Haines for Violating
Respondent’s Lawful No-Solicitation Policy
In my view, the commonsense conclusion that follows
from the above facts is that Haines engaged in solicita-
tion during the working time of Haines, Courtaway and
Schipper, in violation of the Respondent’s lawful no-
solicitation policy. After Courtaway reported the en-
counter to her leadperson, Respondent gave Haines a
“verbal warning”—the least onerous form of discipline
commonly imposed by employers—for the policy viola-
tion. Unlike my colleagues, I believe that the verbal
warning in these circumstances was clearly lawful.
4 Tr. 362 (testimony of Schipper). Courtaway likewise testified that,
when they were on the production line, Haines “told me that she
need[ed] me and my husband to re-sign our union cards” and “[s]he
said she was going to put them in . . . my locker.” (Tr. 351–352.)
5 As noted in the text, Courtaway was doing “cleaning” work in the
production area, and her unrebutted testimony was that she stopped
working because of the conversation (Tr. 350). Haines also was re-
sponsible for “cleaning” and, at the time of the exchange, Haines had
just picked up “cleaning supplies” and encountered Courtaway and
Schipper in the production area while Haines was walking to her work
area in the “smokehouse” (Tr. 274). Only the third employee, Schip-
per, worked in a production position. The record reveals that Schipper
was at her work station and her working time had commenced, but the
production line had not yet started when the conversation occurred (Tr.
358–359). Haines admitted on cross-examination that at the time, she,
Courtaway, and Schipper were all working (Tr. 285–286).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
Under the National Labor Relations Act, 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.” Republic Aviation Corp. v. NLRB,
324 U.S. 793, 797–798 (1945). The Supreme Court has
observed that the “[o]pportunity to organize and proper
discipline are both essential elements in a balanced socie-
ty.” Id. (emphasis added). Consistent with these princi-
ples, the Board has long held that “[t]he Act, of course,
does not prevent an employer from making and enforcing
reasonable rules covering the conduct of employees on
company time. Working time is for work.” Peyton Pack-
ing, above (emphasis added). Consequently, the Board
has long held—and parties have long understood—that it
is lawful for an employer to prohibit all “solicitation”
during the “working time” of any employee involved in
the solicitation (i.e., whether he or she was doing the
soliciting or being solicited), Essex International, 211
NLRB 749, 750 (1974), and employees can lawfully be
disciplined if they violate such no-solicitation policies.6
Applying these principles, I would find that Haines
was lawfully given a verbal warning for violating the
Respondent’s lawful solicitation policy. Haines ap-
proached Courtaway and Schipper when it was working
time for all three employees. Regardless of whether one
looks at Haines’ intent or what Courtaway and Schipper
understood from their encounter with Haines in the pro-
duction area, it is beyond dispute that Haines was trying
to have Courtaway, Courtaway’s husband, and Schipper
sign new union authorization cards. This constitutes
“solicitation” under any commonsense or dictionary def-
inition of the word.7 In Wal-Mart Stores, Inc. v. NLRB,
400 F.3d 1093, 1096 (8th Cir. 2005), denying enf. in
relevant part 340 NLRB 637 (2003), the Eighth Circuit
held that an employee engaged in prohibited solicitation
when he merely stated he would “like [a co-employee] to
6 Equally well established is the principle that a no-solicitation poli-
cy that bans solicitation during “working hours” (rather than “working
time”) is unlawful because a “working hours” prohibition would pre-
vent employees from exercising their lawful right to engage in solicita-
tion during nonworking times like meal periods or breaks. See, e.g.,
North Hills Office Services, 346 NLRB 1099, 1113 (2006); Our Way,
Inc., 268 NLRB 394, 394–395 (1983); Essex International, above.
However, in the instant case, there is no question that Haines received
her verbal warning based on a policy that lawfully banned solicitation
during “working time.”
7 The Merriam-Webster Online Dictionary defines “solicitation” as
“the practice or act or an instance of soliciting,” and it defines “solicit”
as “to ask for . . . something, such as money or help . . . from people,
companies, etc.” or “to ask (a person or group) for money, help, etc.”
See http://www.merriam-webster.com/dictionary/solicitation and
http://www.merriam-webster.com/dictionary/soliciting (most recently
visited October 30, 2014).
have a [union authorization] card to sign.” 400 F.3d at
1099. The court rejected the Board’s position that solici-
tation takes place only when an authorization card is pre-
sented during the conversation. Id. at 1099–1100. As to
this issue, even though there was no evidence that an
authorization card had been placed “directly in front of”
the coemployee, the court held there was “little doubt” as
to the “intent” underlying the “words” spoken, and the
court reasoned that the coemployee “understood the ex-
change as a request to sign the card, an understanding
likely to be reached by the average person in a similar
situation.” Id. Similarly, in the instant case, the record
leaves no doubt as to Haines’ intent and what Courtaway
and Schipper understood. The purpose was to get union
authorization cards signed. The record also leaves no
doubt that all three employees were on working time. As
noted previously, “[w]orking time is for work.” Peyton
Packing, above.8 Accordingly, Respondent could (and
did) lawfully discipline Haines for this solicitation.
I share my colleagues’ objective, which is to give em-
ployees appropriate protection in exercising their Section
7 rights. However, Board and court cases establish that
these rights are not absolute during working time be-
cause, when employees are on the job, an employer can
reasonably insist that employees focus on work. In this
context, clear standards are extremely important because
they permit everyone—employees, unions, and employ-
ers—to understand in advance what is permitted and
what is prohibited. Such a purpose is favored by the Act
because one of the Board’s primary purposes is to foster
stability,9 and the Supreme Court has indicated that
8 The exchange between Haines and Courtaway interrupted or short-
ened the performance of work by both employees. Accordingly,
Haines’ conduct is distinguishable from mere conversations about a
union that do not interfere with work, and this renders inapplicable
cases holding that such conversations may not be prohibited when other
nonbusiness conversations are allowed during working time. See, e.g.,
W. W. Grainger, Inc., 229 NLRB 161, 166 (1977) (involving remarks
such as “support the union” or “there is a meeting tonight”), enfd. 582
F.2d 1118 (7th Cir. 1978); Opryland Hotel, 323 NLRB 723, 731 (1997)
(involving request that employee attend union meeting); Lamar Indus-
trial Plastics, 281 NLRB 511, 513 (1986) (asking employee if she had
union authorization card, although the Board found employer’s conduct
unlawful even if exchange constituted solicitation). I note that the
finding of no solicitation in Lamar Industrial Plastics was mere dicta,
since the Board found that the employer in that case violated the Act
even if the employees engaged in solicitation. See 281 NLRB at 513
(“[I]t is unnecessary to the outcome of this case to decide whether [the
disciplined employees] engaged in solicitation on company time. Even
assuming arguendo that [they] did technically violate Respondent’s
rule, a question still remains whether the rule was discriminatorily
applied to them. The record leaves no doubt that Respondent strictly
enforced the rule in their case solely because the alleged solicitations
were on behalf of the Union.”).
9 See Colgate‐Palmolive‐Peet Co. v. NLRB, 338 U.S. 355, 362
(1949) (“To achieve stability of labor relations was the primary objec-

CONAGRA FOODS, INC. 953
Board standards should provide reasonable “certainty
beforehand” without fear that “later evaluations” may
result in findings of impropriety. First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 678–679 (1981).
Although decades of Board and court cases uphold no-
solicitation policies like the one applied in this case, my
colleagues find that Respondent violated the Act by giv-
ing Haines a verbal warning for violating Respondent’s
lawful no-solicitation policy. My colleagues redefine
lawful no-solicitation policies in two ways: (i) although
a policy states that it prohibits “solicitation” during
working time, such a policy must be interpreted to permit
solicitation on working time except when union authori-
zation cards are displayed or presented; and (ii) solicita-
tion, although lawfully prohibited during “working
time,” is permitted when a production line is not actually
in motion or when there is only a “brief” interruption of
work.
For several reasons, I believe these exceptions and
qualifications are unsupported by the Act and ill-advised.
First, as noted above, longstanding precedent estab-
lishes that an employer is entitled to insist that employ-
ees work during working time and refrain from conduct
that tends to interfere with their own work or the work of
others. The law in this area is based on a recognition that
solicitation (as opposed to mere conversation) is suffi-
ciently likely to interfere with work that a rule prohibit-
ing it during working time is presumed valid, and em-
ployers may lawfully discipline employees who break
such a rule, even if work is not interrupted at all. Our
cases have held that solicitation encompasses “asking
someone to join the union by signing his name to an au-
thorization card,” W. W. Grainger, above, 229 NLRB at
166, and in Wal-Mart, mentioned previously, the Court
of Appeals for the Eighth Circuit rejected the Board’s
prior attempt to suggest, as the majority finds here, that
solicitation never occurs in the absence of authorization
cards.10
Second, my colleagues’ adoption of such fact-specific
exceptions and qualifications will cause confusion for
anyone who attempts to comply with, rely on, or enforce
no-solicitation policies. A primary purpose of our dec-
ades-old standard in this area (upholding no-solicitation
tive of Congress in enacting the National Labor Relations Act.”); NLRB
v. Appleton Electric Co., 296 F.2d 202, 206 (7th Cir. 1961) (stating that
the “basic policy of the Act [is] to achieve stability of labor relations”).
10 In Wal-Mart, the court agreed that an employer may not “prevent
conversations about unions that do not interfere with work productivi-
ty,” 400 F.3d at 1099, but that observation has no application here
because Haines engaged in solicitation, not merely a union-related
conversation or, as the majority contends, a purely informative state-
ment, and the record establishes that the solicitation interrupted or
shortened the cleaning work to be performed by Courtaway and Haines.
policies that prohibit solicitation during “working time,”
while invalidating policies that focus on “working
hours”) was to clearly delineate who can do what and
when, without an extensive inquiry into questions like
(i) precisely what was said and done by the person(s)
engaged in working-time solicitation for or against a un-
ion? (ii) what, if anything, was shown or displayed by the
person(s) attempting to influence others? and (iii) how
much work was actually lost, delayed or deferred when
the attempted persuasion occurred? If evaluating the
enforcement of a lawful no-solicitation policy requires
these questions to be asked and answered, nobody will
really know whether or when “solicitation” is prohibited
unless and until it occurs. Therefore, when employees
engage in solicitation, the consequences will become a
game of chance. This is illustrated by the following ex-
amples:
• In most workplaces, there is no physical “assembly
line,” and employee work responsibilities are not
readily apparent. Under a legal standard that makes
a no-solicitation policy’s application turn on wheth-
er “working time” solicitation actually interferes
with work to an impermissible degree, any employ-
ee engaging in such solicitation would act at his or
her peril because he or she will be unable to know if
their persuasion efforts caused a material negative
impact on output or productivity.
• Employees who believe they can engage in solicita-
tion (attempts to persuade others to support or op-
pose a union) during working time because the in-
tended work interruption will be brief will face po-
tential discipline if their discussions are unexpected-
ly prolonged or result in unanticipated participation
by bystanders that causes a material negative impact
on output or productivity.
• If “solicitation” turns on whether authorization
cards are displayed or presented, cases may emerge
where the employee-recipient of persuasion efforts
unexpectedly pulls an authorization card out of a
pocket (or displays the card on a smartphone) dur-
ing the exchange.11
• Other questions may arise regarding what consti-
tutes an “authorization card.” A variety of materials
can be submitted in support of a showing of inter-
est, some cases deal with cards or petitions that the
Board declares invalid or insufficient (e.g., authori-
11 In this circumstance, my colleagues would presumably find that
prohibited “solicitation” occurred. However, their opinion suggests
that such a finding and, therefore, the legality of discipline could none-
theless turn on other issues like the length of the exchange, whether
production was interrupted, and so on.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
zation cards that are signed but not dated),12 and the
Board has even solicited input regarding potential
“electronic” showings of interest in lieu of authori-
zation cards.13
Third, although my colleagues’ approach requires a
fact-specific inquiry to determine whether or when vari-
ous appeals during working time violate no-solicitation
policies (e.g., was an authorization card presented for
signature, how long did the exchange continue, what was
stated, and to what extent was output or productivity
negatively affected), the Act generally prohibits employ-
ers from undertaking these types of fact-specific inquir-
ies. The Board has held on many occasions, for exam-
ple, that Section 8(a)(1) prohibits employers from inter-
rogating employees regarding conversations that have
taken place regarding potential support for the union,14
and it prohibits employers from engaging in surveillance
or creating the impression of surveillance of union-
related discussions.15 It defeats the purpose of having
lawful no-solicitation policies if the Board’s standards
regarding whether and how the policy can be enforced
will require employers to engage in interrogation or sur-
veillance that independently violates the Act. More im-
portant, it appears certain that Congress, when it enacted
the NLRA, never intended that the Act would include
such an incongruous and self-contradictory standard of
legality.
Finally, in addition to introducing uncertainty into an
area of the law where the rules have previously been
clear and understandable, I believe the approach adopted
by my colleagues will, in many ways, be absurd in prac-
tice. As the result of this case, lawful no-solicitation
policies become a new type of Zeno’s paradox that pro-
duces opposite, irreconcilable results at the same time.16
12 See, e.g., A. Werman & Sons, Inc., 114 NLRB 629 (1955) (finding
that signed authorization cards were deficient if they were not dated).
13 The Board has issued a proposed rule regarding representation
elections in which the Board majority “specifically seeks comments on
the question of whether the proposed regulations should expressly
permit or proscribe the use of electronic signatures” in lieu of conven-
tional authorization cards. See 79 FR 7318, 7326 (Feb. 6, 2014). If my
colleagues find that prohibited working time “solicitation” occurs only
if conventional authorization cards are displayed or presented by the
person engaged in the on-the-job persuasion, this might suggest that—
even when an employer’s lawful no-solicitation policy prohibits work-
ing time “solicitation”—such “solicitation” must always be deemed
permissible during working time if the Board’s rulemaking dispenses
with the requirement of written authorization cards to satisfy the show-
ing of interest requirement.
14 Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
15 Flexsteel Industries, 311 NLRB 257, 257 (1993).
16 The phrase “Zeno’s paradox” refers to a series of problems at-
tributed to the Greek philosopher, Zeno of Elea, which redefine observ-
able events to “demonstrate” they are impossible to achieve. Accord-
My colleagues recognize (as they must) the validity of
lawful policies that prohibit working time solicitation,
but they require employers to permit working time solici-
tation (so long as written authorization cards are not dis-
played or presented at that very moment). In this new
reality, solicitation is prohibited and permitted at the
same time. What gets lost is the fact that nobody would
reasonably interpret no-solicitation policies in this man-
ner.17 Indeed, the Board applies a different standard re-
garding the distribution of written materials, which ren-
ders lawful employer rules that bar the distribution of
written materials in work areas. This was articulated in
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), where
the Board majority stated that “a real distinction exists in
law and in fact between oral solicitation on the one hand
and distribution of literature on the other.” Id. at 616.
The Board has long treated solicitation regarding the
signing of authorization cards as coming within the “so-
licitation” standard, which means employers must permit
(i) solicitation regarding authorization cards, and (ii) the
display of authorization cards in the course of such solic-
itation, if these occur on nonworking time—even in work
areas, within which other forms of distribution can be
prohibited. Id. at 620 fn. 6. But it is one thing to say that
the presentation of an authorization card constitutes “so-
licitation” and not “distribution.” It is something else to
hold that oral solicitation is not even solicitation, and the
only thing that constitutes “solicitation” is the exchange
or display of authorization cards. That is the position my
colleagues adopt in today’s decision, similar to the posi-
tion rejected by the Eighth Circuit in Wal-Mart.
The far better outcome here is to apply basic dictionary
definitions that people understand. In the instant case,
the record shows Haines was soliciting Courtaway and
Schipper over a period of time. Unfortunately, some of
this soliciting occurred during the working time of
Haines, Courtaway and Schipper, and this violated Re-
ing to the “Achilles and the Tortoise paradox,” if the tortoise starts out
ahead in a footrace, Achilles can never overtake it because “whenever
Achilles reaches somewhere the tortoise has been, he still has farther to
go.” According to the “Arrow paradox,” when an arrow is in flight,
there are an infinite number of instances when it is not moving, there-
fore motion is impossible. See, e.g., Wikipedia, Zeno’s paradoxes
(http://en.wikipedia.org/wiki/Zeno's_paradoxes#Arrow_paradox) (most
recently visited October 30, 2014).
17 I cannot identify any other legal context in which laws prohibiting
an act are enforced in a way that explicitly permit it. Nobody would
reasonably argue that laws prohibiting drug dealing must freely permit
drug transactions, so long as the money and the illicit substance are
exchanged at different times or places. Nor would anyone reasonably
argue that the solicitation of prostitution cannot occur unless sexual
services are performed at the very moment money changes hands. All
of these contexts focus on the interaction between two or more people,
and it is not relevant where or when other parts of the transaction are
completed.

CONAGRA FOODS, INC. 955
spondent’s lawful no-solicitation policy. For the reasons
stated above, I believe the verbal warning did not violate
Section 8(a)(3) and (1) of the Act.18
C. The Letter Describing Respondent’s Lawful No-
Solicitation Policy
By adopting specialized definitions of the terms “solic-
itation” and “working time” (as described above), my
colleagues find that Respondent violated the Act by giv-
ing Haines a verbal warning when she engaged in oral
solicitation of Courtaway and Schipper during the work-
ing time of all three employees. Additionally, my col-
leagues find that Respondent committed another viola-
tion when it described its lawful no-solicitation policy in
a posted letter that stated in part:

We . . . wish to remind employees that discussions
about unions are covered by our Company’s Solicita-
tion policy. That policy says that solicitation for or
against unions or other organizations by employees
must be limited to non-working times. Distribution of
materials is not permitted during working time or in
work areas at any time.

(Emphasis added.) Here as well, the Board would be well
served by applying dictionary definitions. Doing so, the
above description in my view lawfully accomplishes two
things.
The initial sentence accurately states that union-related
discussions are “covered by” the solicitation policy. The
term “cover” means “to deal with” (e.g., “material cov-
ered in the first chapter”) or having “sufficient scope to
include or take into account” (e.g., “an examination cov-
ering a full year’s work”).19 In fact, it is true that “dis-
cussions about unions” that constitute solicitation—the
only “discussions about unions” employees would rea-
sonably read the letter as referring to—are “covered by”
18 I also disagree with the judge’s finding that the Respondent’s dis-
cipline of Haines was motivated by animus toward her protected con-
duct 6 weeks earlier. That theory was not alleged, and it is not support-
ed by the record. As the General Counsel acknowledged in his answer-
ing brief, “This is not a case involving a mixed motive or a Wright Line
defense. There is no dispute that Haines was disciplined for her [en-
counter with Courtaway and Schipper]. The only dispute . . . is wheth-
er Respondent could lawfully discipline Haines because [the encounter]
violated a lawful no-solicitation policy.” GC Answering Br. at 9. Nor
could the General Counsel substantiate a pretext claim. The record is
clear that Courtaway immediately reported Haines’ solicitation to her
leadperson, prompting an investigation that confirmed Haines had, in
fact, engaged in solicitation during working time; and the Respondent’s
disciplinary records establish that it took transgressions of its no-
solicitation policy seriously, as evidenced by its discipline of other
employees, including a supervisor, for similar violations.
19 Merriam-Webster Online Dictionary (available at
http://www.merriam-webster.com/dictionary/cover) (most recently
visited October 30, 2014).
Respondent’s solicitation policy. My colleagues contend
that the term “covered” here means “prohibited” (i.e.,
they read the phrase “discussions about unions are cov-
ered by our Company’s Solicitation policy” to mean
“discussions about unions are prohibited by our Compa-
ny’s Solicitation policy” during working time). Alterna-
tively, according to my colleagues, the letter unlawfully
stated “discussions” about unions were covered by the
solicitation policy, instead of stating “some discussions”
about unions were covered by the policy. In my view,
these interpretations are not only unsupported by the dic-
tionary, they are contradicted by the very next sentence
in the letter (see below), in addition to the substance of
Respondent’s no-solicitation policy.
The second sentence continues by stating, accurately,
the lawful parameters set forth in the Respondent’s solic-
itation policy. The letter refers to “that policy,” i.e., the
“Solicitation” policy, with an explanation what the policy
“says,” with the following statement: “solicitation for or
against unions or other organizations by employees must
be limited to non-working times.” This description not
only accurately sets forth the substance of Respondent’s
solicitation policy, it precisely describes the standard
applied by the Board and the courts.
My colleagues are motivated by a well-intentioned de-
sire to prevent employees from misconstruing Respond-
ent’s letter. However, Section 8(a)(1) does not empower
the Board to prohibit general statements that describe
lawful policies; rather, the statute only prohibits state-
ments that “interfere with, restrain, or coerce employees”
in the exercise of protected rights.20 To prevail in this
case, the General Counsel has the burden of proving that
language contained in Respondent’s reminder letter con-
stituted unlawful interference, restraint or coercion under
Section 8(a)(1). In my view, the record does not support
such a finding.
Moreover, my colleagues conclude that the letter vio-
lates Section 8(a)(1) based on the “reasonably construe”
test set forth in Lutheran Heritage Village, 343 NLRB at
646–647. Under that test, employer policies will be de-
clared violative of Section 8(a)(1) if “employees would
reasonably construe the language to prohibit Section 7
activity.” Id. (emphasis added). Even if one applies the
Lutheran Heritage Village test, one cannot “reasonably”
construe any language in Respondent’s letter “to prohibit
Section 7 activity.” Rather, the letter reminds employees
about Respondent’s lawful no-solicitation policy, and the
20 In addition, Sec. 8(c) affirmatively provides that “views, argu-
ment, or opinion, or the dissemination thereof” in “written, printed,
graphic, or visual form, shall not constitute or be evidence of an unfair
labor practice” unless there is a “threat of reprisal or force or promise
of benefit.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956
letter accurately sets forth the substance of the policy. In
these circumstances, I believe finding a violation im-
properly treats Respondent’s lawful no-solicitation poli-
cy as if it were unlawful; and a finding of illegality re-
quires unreasonable interpretations of both quoted sen-
tences from Respondent’s letter, in addition to the phrase
“interfere with” and the words “restrain” and “coerce”
used in Section 8(a)(1).21
Accordingly, as to the above issues, I respectfully dis-
sent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT promulgate and maintain rules that pro-
hibit employees from discussing union-related issues
during working time and/or in work areas.
WE WILL NOT remove union literature from nonwork
areas.
WE WILL NOT prohibit you from reading or taking un-
ion literature, WE WILL NOT take or attempt to take union
literature from you, and WE WILL NOT inform you that it
is against company policy for you to read union litera-
ture.
WE WILL NOT prohibit you from signing authorization
cards on nonworktime and in nonwork areas.
WE WILL NOT discipline you for engaging in union ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
21 Because we deal here with a facial challenge to the rule, enforce-
ment evidence is irrelevant in determining its legality. See Flex Frac
Logistics, LLC, 358 NLRB No. 127, slip op. at 2 (2012) (facial chal-
lenges separate from “as applied” violations), enfd. 746 F.3d 205 (5th
Cir. 2014). Insofar as cases like The Roomstore, 357 NLRB No. 143
(2011), hold otherwise, they cannot be reconciled with the standard
established in Lutheran Heritage Village, above.
WE WILL rescind our September 2011 and April 30,
2012 rules prohibiting you from discussing union-related
issues in working areas and/or during worktime, and af-
ter the rescission WE WILL advise you in writing that the-
se unlawful rules are no longer being maintained.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful
warnings issued to Janette Haines, and, within 3 days
thereafter, WE WILL notify her in writing that this has
been done and that the warnings will not be used against
her in any way.
CONAGRA FOODS, INC.

The Board’s decision can be found at
www.nlrb.gov/case/09-CA-089532 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.

Jamie Ireland and Zuzana Murarova, Esqs., for the General
Counsel.
Ruth Horvatich and Jennifer Dehloff, Esqs. (McGrath North
Mullin & Kratz, P.C.), of Omaha, Nebraska, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Dayton, Ohio on March 25— 26, 2013. UFCW
Local 75 filed the initial charges on September 18, and October
5, 2012. The General Counsel issued a consolidated complaint
on January 15, 2013.
The General Counsel alleges that Respondent, Conagra, by
its consultant and agent, Phillip Craft, violated Section 8(a)(1)
in a series of presentations he made to employees on August 21
and 22, 2012. The General Counsel alleges more specifically
that Craft told the employees that they could not talk about the
Union while on company time or on the production floor.
The General Counsel also alleges that Respondent violated
Section 8(a)(3) and (1) in issuing a verbal warning to employee
Janette Haines on about October 2, 2012. Respondent issued
Haines a verbal warning on that date for soliciting on behalf of
the Union.

CONAGRA FOODS, INC. 957
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with a facility in Troy, Ohio
where it produces Slim Jims, pizza, breadsticks and similar
products. In 2012 it sold and shipped goods valued in excess of
$50,000 directly to places outside of Ohio. Conagra admits,
and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Complaint paragraph 5: the meetings conducted at
Respondent’s facility by Phillip Craft
The Union, UFCW Local 75, began an organizing drive at
Respondent’s Troy, Ohio facility in about August 2011. As of
the date of this hearing, the Union had not filed a representation
petition.
At some point, Respondent hired the firm of Craft and Barre-
si to prepare a presentation for its employees about unions.
Employees of the consulting firm gathered information from
employees at the plant in preparation for these presentations.
Phillip Craft, a principal of the firm, conducted 14 meetings
with different groups of employees on August 21 and 22, 2012.
He conducted six meetings in Building 2 of the plant on August
21 and eight more in Building 1 of the plant on August 22.2
Craft made his presentations from a slide show or Power
Point demonstration. He generally read from the slides, alt-
hough at times he talked extemporaneously or responded to
questions from the audience.
One slide from which Craft read at every meeting concerned
Conagra’s “No Solicitation No Distribution Policy.” This slide
presented the following “bullet points:”

No distribution rule (strictly enforced)
Prohibit in work areas at all times
Prohibit in all areas during working time
Prohibit all non-employees from distributing

No solicitation rule (strictly enforced)
Prohibit solicitation during working time
Prohibit solicitation in a work area on employee’s own
time
Prohibit all non-employees from soliciting

It is undisputed that Respondent allows employees to talk
about nonwork-related subjects while working in working are-
as.3 What is disputed in this matter is whether Craft said at
1 Tr. 102, line 23 should read, “antithetical.”
2 The parties stipulated to the introduction of G.C. Exh. 9 without
any discussion or testimony. In the absence of any evidence to the
contrary, I find that the meetings took place at the times set forth in that
exhibit.
3 A long line of Board cases holds that an employer violates the Act
when employees are forbidden to discuss unionization, but are free to
several meetings, when speaking extemporaneously, that em-
ployees could not discuss the Union or unions during worktime
in work areas. However, it is also undisputed that after Craft’s
presentations, several or many employees discussed the Union
on the production floor while working and that nobody was
disciplined for doing so with the possible exception of Jan
Haines on October 2, 2012.
Scott Adkins, Respondent’s plant manager, and Thomas
Thompsen, Respondent’s human resources manager, attended
all 14 of Craft’s presentations. They, as well as Craft, himself,
testified that he never told employees they could not discuss the
Union while working and in fact, in response to questions, said
just the opposite. Respondent also presented the testimony of
Jesse French, a rank and file employee, and leadperson Ryan
Fields, concerning the 10 p.m. meeting on August 22, to rebut
the testimony of the General Counsel’s witnesses regarding
Craft’s presentation. Douglas Hearn and Jane Gambill were
called by Respondent to testify about the 0700 meeting which
they attended. James Warner, a leadman, testified for Re-
spondent regarding the midnight August 22/23 meeting.
Jacqueline Seipel, a rank and file employee, testified for Re-
spondent concerning the meeting which she attended, although
it is not clear from the record which session that was.
There are no recordings or notes of anything Craft said other
than the slides. Therefore, it is necessary to closely examine
the testimony of the General Counsel’s witnesses in order to
determine whether there is any greater reason to credit their
testimony than that of Respondent’s witnesses. Another way of
putting this would be whether the General Counsel established
by a preponderance of the evidence that Craft said the things
alleged in the complaint.
Testimony regarding the 1 p.m. meeting on August 21
Rhonda Dross: Dross testified that Craft had a slide show
and then, “he talked about soliciting, we wasn’t allowed solicit-
ing. Talked—said we was not allowed talking about the Union
on our breaks until—unless we was on our breaks and lunches,
or outside of work,” Tr. 92. On cross-examination, Dross testi-
fied that Craft said that no soliciting was allowed during our
working hours, but also that he said, “no talking about the Un-
ion,” Tr. 97.
Paul Jackson: Jackson testified that he was almost 100 per-
cent sure that Craft said that you cannot talk about the Union on
company time. I do not credit Jackson’s testimony because he
clearly had only a sketchy memory of what was said at the
meeting, and his testimony is obviously inaccurate in some
respects, see Tr. 114, 119–120, 125, 133.
Julie Strader: Strader testified that Craft stated the employ-
ees were not allowed to talk about the Union on the production
floor, Tr. 146.
After the meeting, Strader saw Jan Haines, one of the most
outspoken union supporters, in the ladies room. Strader told
Haines that Craft had stated that employees could not talk about
the Union on the production floor.
discuss other subjects unrelated to work, e.g., Jensen Enterprises, 339
NLRB 877, 878 (2003).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
Testimony regarding the meeting at 5 a.m. on August 22
The General Counsel presented only one witness to testify
about the 5:00 meeting on August 22. Cynthia Bowling came
to 5:00 meeting prepared to take notes. She testified that Craft
stated that employees are not allowed to talk about the Union in
a work area. Tr. 16. Bowling testified that she challenged Craft
on this statement and that he responded by stating this rule was
in Respondent’s employee handbook. She testified that she
asked him to show the rule to her in the handbook. At some
point, according to Bowling, Craft said his slide came right out
of the handbook. Bowling’s testimony in this respect is unreli-
able because it is certain that Respondent did not have a rule
against union talk on the production floor in its handbook and
Craft’s slides had no such statement on them.
After the meeting Bowling approached plant manager Scott
Adkins and asked him to sign her notes. He declined but ac-
companied Bowling to talk to Craft. Craft denied he told em-
ployees that they were not allowed to talk about the Union on
work time and affirmatively stated the opposite, Tr. 20.4
Testimony regarding the 7 a.m. meeting on August 22
Employees Bill Stevens, Crystal Lindamood and former em-
ployee Robert Adams testified that Craft stated that employees
could not talk about the Union, Tr. 37, 58, 73. Lindamood gave
an affidavit to the Board Agent stating that Craft told employ-
ees that Respondent’s handbook prohibited employees from
talking about the Union on the production line. At trial, she
recanted this testimony, Tr. 78–79. The fact that both Linda-
mood and Cynthia Bowling either testified or gave affidavits
that Craft cited the employee handbook as authority for prohib-
iting union talk on the production line undercuts the reliability
of both witnesses’ testimony. Since the handbook contains no
such statement, it is highly unlikely that Craft said that it did so.
Testimony regarding the 10 p.m. meeting on August 22
Jan Haines, an early and prominent union supporter, went to
the 10 p.m. meeting on August 22, after discussing with other
employees, including Julie Strader, what Craft had said at earli-
er meetings. She testified that:

And I remember him reading from the slides, and he got to a
point where—and I—I feel like he read this from the slide,
but he said for sure you cannot talk about the Union during—
work time, on the—floor, on the production floor. I don’t
know his exact words, but he definitely said you couldn’t dis-
cuss it while working.
Tr. 266.

Haines then took issue with Craft and they engaged in an ar-
gument in front of the entire audience. Craft denied that he said
that employees could not talk about the Union during work
time, Tr. 267. After a while both Craft and another employee
expressed anger at Haines. The reliability of Haines’ testimony
is undercut by her testimony that Craft was reading from a slide
when he told employees that they could not discuss the Union
4 Atkins confirmed that Bowling approached him after the meeting
with a request to sign her notes. He did not testify regarding her subse-
quent conversation with Craft. Craft did not discuss any interaction
with an employee that corresponds with Bowling’s testimony.
on worktime, Tr. 281. Craft had no such slide.
The testimony of Jerry Hoschower, who attended the same
meeting, is completely unreliable as he testified that he did not
specifically recall what Craft stated about talking about the
Union, Tr. 49–50. He did not recall Craft’s name and generally
seemed not to remember much that transpired during Craft’s
presentation.
Victoria Harris testified that she was embarrassed by Haines’
conduct at the meeting. However, she also testified that Craft
stated that you can talk about the Union but not during produc-
tion, Tr. 163–164. However, Ms. Harris conceded that she was
not paying close attention to what was going on at the meeting
due to her lack of interest, Tr. 173, 177. Thus, I conclude her
testimony has little value.
John Adkins, who also attended the 10 p.m. meeting on Au-
gust 22, testified that Craft told employees that they were not
allowed to discuss the Union on the production floor. He also
testified that Craft denied saying this when challenged by Jan
Haines, Tr. 184–185. In his affidavit to the Board agent, Ad-
kins contradicted his trial testimony and also stated he was not
paying attention until Haines spoke up. This leaves his testi-
mony as to what transpired beforehand worthless, Tr. 192–193.
Don Burns, a witness called by the General Counsel, testified
that he was not paying attention at the meeting until Jan Haines
began arguing with Craft. He did not testify as to what Craft
said before the argument.
Andrew Golden at first testified that Craft said employees
could talk about the Union on their own time, not company
time. On cross-examination, he was unsure as to whether Craft
said this, Tr. 237–238. Golden recalled almost nothing else
about the meeting and did not recall anybody asking questions.
It is not clear to me that Golden had any accurate recollection
about what transpired.
The General Counsel clearly did not meet his initial burden
of establishing that Craft told employees that they could not
talk about the Union on the production floor during worktime at
the August 22, 10 p.m. meeting.
Testimony about the August 22/23 midnight meeting
The General Counsel called Pamela Cole, a security guard at
Conagra, who is hostile to Jan Haines and therefore I assume,
unsympathetic to the Union. Cole testified that Craft told em-
ployees that they could talk about the Union but that if you
were bothering other people you were to leave them alone, Tr.
253. In an affidavit given to a Board agent, Cole stated that
Craft told employees that they were not to talk about the Union
on the company floor. At trial, Cole denied that she heard Craft
say that and testified that she did not read that part of her affi-
davit closely.
Testimony regarding unspecified meetings
It is unclear which meeting Jacqueline Seipel, called by Re-
spondent, attended. Seipel testified that Craft did not say that
employees could not talk about the Union on working time.
It is the General Counsel’s burden to prove by a preponder-
ance of the evidence that Craft made the statements alleged in
the complaint. He has failed to do so. The General Counsel
has not given me any persuasive reason to credit his witnesses
over that of Scott Adkins, Thomas Thompsen, and Craft. Many

CONAGRA FOODS, INC. 959
of the witnesses appear to have little recollection of what actu-
ally was said at the meetings and with regard to many, it is
clear that their testimony is in part inaccurate. For that reason,
I dismiss complaint paragraph 5.
Complaint paragraph 6: the verbal warning issued to
Janette Haines
As stated previously, Janette Haines, who worked the third
shift (10 p.m. to 6:30 a.m.) in Respondent’s sanitation depart-
ment was one of the Union’s earliest and most active support-
ers. She distributed union literature and solicited employees to
sign union authorization cards. Haines, as stated before, openly
challenged Phillip Craft in the presence of plant manager Scott
Adkins and Human Resource Manager Thomas Thompsen on
the night of August 22.
On October 2, 2012, Respondent issued Haines a verbal
warning for alleging soliciting employees in a working area—
apparently on or about September 24, 2012, G.C. Exh. 5. The
General Counsel alleges that Respondent violated Section
8(a)(3) and (1) in doing so.
Sometime in September 2012, Haines began to encourage
employees who had signed union authorization cards to sign
new ones. One day she encountered Megan Courtaway and
Andrea Schipper, who worked close to one another on the Slim
Jim Packaging line, in the ladies room. Haines asked them if
they would sign new authorization cards. Courtaway and
Schipper indicated that they would do so.
A few days after that, Haines encountered Schipper in the la-
dies room again. She asked Schipper if she could put authori-
zation cards in Schipper’s locker for the two women and Cour-
taway’s husband, who also worked for Respondent. Schipper
agreed and gave Haines the number of her locker, which she
shared with Courtaway.
As to the incident for which Haines was disciplined, I credit
the testimony of Haines and Respondent’s witnesses, Andrea
Schipper, and specifically credit Schipper’s testimony to the
minimal extent that it conflicts with that of Respondent’s wit-
ness Courtaway. Schipper and Courtaway were at their work-
station waiting for their production line to start running when
Haines passed them and told Courtaway that she had put au-
thorization cards in their locker. Haines did not have authoriza-
tion cards on her person and did not ask Courtaway and Schip-
per to sign authorization cards in a work area.
This conversation lasted a matter of seconds and did not in-
terfere with production, Tr. 364, 355. Haines continued on to
do her work duties. A lady named Amanda, who was the lead-
person for Courtaway and Schipper’s line, came by their work-
station shortly thereafter. Courtaway told Amana that Haines
had put authorization cards in their locker and that Haines had
just advised them of that fact.
Amanda reported this to their supervisor, a man named
Ritchie, and sent Courtaway and Schipper, “upstairs” to talk to
Ritchie. Ritchie told Courtaway and Schipper to get the cards
and bring them to him. Schipper went to her locker, obtained
the authorization cards and brought them to Ritchie. Then
Ritchie had Courtaway and Schipper fill out a statement about
what transpired. Neither Courtaway nor Schipper told anyone
that Haines had asked them to sign an authorization card on the
production floor (Tr. 350–354, 361).
On about October 2, 2012, in the early morning, Haines’ su-
pervisor, Bo Smith, told her to go to the office of Brad Holmes,
a senior human resources generalist, who reports to Thomas
Thompsen. Haines and Smith attended a meeting with Holmes.
Holmes told Haines that “two girls had complained that [she]
had solicited them on the gable top,” Tr. 277. Holmes told
Haines that employees were saying that Haines was offering
authorization cards on the production floor for them to sign, Tr.
336.
This, according to Schipper and Courtaway, was not true.
Holmes never spoke to Schipper and Courtaway. Their written
statements are not in this record, thus there is no evidence as to
what information was in them.
Haines told Holmes that “absolutely did not happen.”
Holmes then presented Haines with the warning which is
signed by Holmes, Haines, Smith, and David Stormer, the Pro-
duction Manager, who entered the room at the end of the meet-
ing.5
Human Resources Director Thomas Thompsen testified that
he made the decision to discipline Haines for solicitation, but it
is unclear what his involvement was and when it took place.
Thompsen did not attend the October 2, 2012 meeting with
Holmes and Haines at which the verbal warning was presented.
He testified that “we” took a look at the statements written by
Andrea Schipper and Megan Courtaway, Tr. 321. At Tr. 326
Thompsen testified that he read these statements and talked to
both employees. I do not credit this testimony.
First of all, neither Schipper nor Courtaway testified to being
interviewed by anyone other than their immediate supervisor.
Since Holmes, who reported to Thompsen, only reviewed these
employees’ written statements and did not interview them, I
find it highly unlikely that Thompsen interviewed them.
Based on the record as a whole, I conclude that Respondent
had no evidence that Haines attempted to have employees sign
authorization cards on the production floor. I also conclude
that the verbal warning was discriminatorily motivated.
Management knew that Haines was a vocal and active sup-
porter of the Union. I also infer that Respondent bore substan-
tial animus towards her as the result of her conduct at the Au-
gust 22 meeting. There is no explanation in this record as to
why Megan Courtaway felt compelled to report to her line lead
that Haines had left authorization cards in Andrea Schipper’s
locker. There is no explanation as to why the line lead immedi-
ately sent the two employees to their supervisor to write out a
statement. Given this and the fact that Respondent issued the
warning based on inaccurate information (which it apparently
did not possess) that Haines was asking employees to sign au-
thorization cards while they were on the production floor, I
conclude that Respondent was looking for an excuse to retaliate
5 The warning appears to have been drafted prior to Holmes’ meet-
ing with Haines. Thus, there is a strong indication that Respondent
decided to discipline Haines before it heard her side of the story.
Moreover, it declined to tell Haines which employees accused her of
solicitation, making it virtually impossible for her to effectively re-
spond to these accusations. This inadequate, inaccurate and biased
investigation of Haines’ conduct indicates discriminatory motivation,
Midnight Rose Hotel & Casino, 343 NLRB 1003, 1005 (2004).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
against Haines for her union activity. I further conclude that
Respondent would not have issued Haines the verbal warning
on October 2, but for the animus towards her protected conduct
on August 22.
Did Haines engage in unprotected solicitation?
A most curious aspect of this case is that Phillip Craft, the
consultant hired by Respondent to educate its employees about
what they could or could not do, opined that conduct similar to
that of Haines does not constitute unprotected solicitation.
At Tr. 228, Respondent’s counsel sought to clarify Craft’s
understanding of what constitutes solicitation. The General
Counsel objected on the grounds that the question exceeded the
scope of cross-examination. I overruled the objection. Craft
stated that if an employee asks another on working time if they
can sign an authorization card, it does not constitute solicitation
unless the employee has the card in hand for the other employ-
ee to sign on the production line, Tr. 229–231. Thus, if an em-
ployee tells another on the production line that he or she should
get an authorization card from the first employee after working
hours in a nonwork area, the employee is not engaged in unpro-
tected solicitation.
Craft’s opinion is consistent with Board precedent, Wal-Mart
Stores, 340 NLRB 637, 638–639 (2003).6 There the Board
stated that “an integral part of the solicitation process is the
actual presentation of an authorization card to an employee for
signature at the time. As defined, solicitation activity prompts
an immediate response from the individual or individuals being
solicited and therefore presents a greater potential for interfer-
ence with employer productivity if the individuals are supposed
to be working. Solicitation is therefore subject to rules limiting
it to nonworking time and in the special circumstances of retail
stores, to non-selling areas.”
The United States Court of Appeals for the Eighth Circuit
reversed the Board in part, Wal-Mart Stores, Inc. v. NLRB, 400
F.3d 1093 (8th Cir. 2005). The Court of Appeals panel held 2-
1 that Wal-Mart employee Shieldnight engaged in unprotected
solicitation when he asked another employee, who was on duty,
to come to a union meeting and told her that he would like her
to sign an authorization card. I am bound by Board precedent
even if the Wal-Mart case is indistinguishable from the instant
matter. Judges must apply established Board precedent which
the Supreme Court has not reversed. It is for the Board, not the
judge, to determine whether that precedent should be varied,
Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984).
Furthermore, the instant case is distinguishable from the
Wal-Mart case. The panel majority noted that the record in
Wal-Mart was silent as to whether Shieldnight had an authori-
zation card on his person. In this case, the record establishes
that Haines did not have a card on her person and made it clear
to fellow employees Courtaway and Schipper that the authori-
6 Also see Lamar Industrial Plastics, 281 NLRB 511, 513 (1986);
Waste Management of Arizona, 345 NLRB 1339, 1349–1350 (2005), in
which the Board affirmed the decision of the administrative law judge.
Two Board members, however, stated they found it unnecessary to rely
on his comments and case citations regarding the distinction between
union solicitation and other employee activity in support of union or-
ganizing.
zation cards were in Schippers locker, a nonwork area, not on
her person. Thus, Haines’ statements to Courtaway and Schip-
per did not have a significant potential to disrupt the workplace.
Moreover, it is meaningless to say that employees can ex-
press their support or opposition to the Union on worktime but
cannot tell others how they may demonstrate that support or
opposition (assuming they are allowed to discuss nonwork
matters at all). If it is protected activity to discuss the union or
speak for or against the union, it would follow that an employee
may tell other employees about meetings or rallies either in
favor or against the Union. It also follows that they have a
protected right to tell employees where they may obtain pro or
antiunion buttons, or an authorization card or sign an antiunion
petition on nonworking time, if located in a nonwork area.
The letter to employees posted by Respondent on April 30, 2012
At the close of the hearing the General Counsel moved to
amend the complaint to allege that R. Exh. 4, a letter to em-
ployees from plant manager Scott Adkins, violates Section
8(a)(1), Tr. 426–428. This exhibit was introduced into evi-
dence by Respondent through Scott Adkins, Tr. 291–292.
I granted the motion to amend, which I construe as a motion
to conform the pleadings to the evidence. Respondent contends
that it has been denied its due process rights by virtue of the
amendment.7 In deciding whether to permit a motion to
amend, the Board considers a variety of factors, including the
identity of the party who first introduced evidence relating to
the amendment, whether the issue was fully litigated and
whether Respondent has demonstrated that the amendment was
prejudicial, Pincus Elevator & Electric Co., 308 NLRB 684
(1992).
I find that the amendment is not prejudicial and does not de-
ny Respondent due process. The April 30 letter was introduced
by Respondent through its plant manager and, as explained
below, violates Section 8(a)(1) on its face. Given that fact that
alleged Section 8(a)(1) violations are adjudicated pursuant to an
objective test (whether employees could reasonably interpret
the letter as prohibiting protected conduct), no additional evi-
dence could have bearing on the merits of the additional allega-
tion, Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). Respondent’s motive in posting the letter and its sub-
jective effect on employees (i.e., whether they were in fact
coerced, restrained, etc.) is irrelevant, Miller Electric Pump &
Plumbing, 334 NLRB 824 (2001).
The letter was posted on April 30, 2012, in conjunction with
Conagra’s posting of a general notice regarding employee
rights under the Act. The letter in pertinent part states:

We also wish to remind employees that discussions about un-
ions are covered by our Company’s Solicitation policy. That
policy says that solicitation for or against unions or other or-
ganizations by employees must be limited to non-working
7 Respondent has not raised a 10(b) defense. Even if it had done so,
I conclude that the allegation has a sufficient nexus to the charge filed
on September 18, 2012 (since July 2012 the employer has prohibited
employees from engaging in union activity on company time), to satis-
fy the requirements of Sec. 10(b), Payless Drug Stores, 313 NLRB
1220 (1994).

CONAGRA FOODS, INC. 961
times. Distribution of materials is not permitted during work-
ing time or in work areas at any time.

In equating “discussions about unions” with solicitation, the
letter is overly broad and violates Section 8(a)(1). The letter
not only does not distinguish between “solicitation” and “dis-
cussions about unions,” it equates them. Thus the letter vio-
lates Section 8(a)(1) in that it is so broad that it can reasonably
be construed as encompassing protected conduct, Cintas Corp.,
344 NLRB 943 (2005); Bigg’s Foods, 347 NLRB 425 fn. 4
(2006).
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(3) and (1) by issuing
Janette Haines a verbal warning on October 2, 2013, for solici-
tation.
2. Respondent’s letter regarding the NLRA notice, which
has been posted at the Troy, Ohio facility since April 30, 3013,
violates Section 8(a)(1).
3. The General Counsel has not established that Respondent,
by Phillip Craft, violated the Act on August 21 and 22, 2012, as
alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent shall be ordered to rescind the
verbal warning issued to Janette Haines on October 2, 2012,
and to revise the letter it posted on April 30, 2013, to clarify
that talking about the union during worktime on the production
floor does not constitute solicitation that is unprotected by Sec-
tion 7 of the Act.
[Recommended Order omitted from publication.]