Blanket Ban on Union Solicitation in Mixed-Use Areas Prohibited

By Michael A. Warner Jr. Nov 16, 2016

Employers cannot fully ban union solicitation and distribution of fliers in work areas that periodically accommodate nonwork activities, and they must clearly indicate their intent to protect employees' rights to solicitation and distribution, according to the 11th U.S. Circuit Court of Appeals.

The National Labor Relations Act (NLRA) protects employees' right to distribute literature in nonwork areas when they are on nonworking time. Mercedes-Benz U.S. International Inc. (MBUSI) has a policy prohibiting the solicitation and distribution of nonwork-related materials by employees during work time or in working areas.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

In June 2013, employee David Gilbert was distributing pro-union fliers in a MBUSI manufacturing plant's team center a few minutes before his shift began when an HR representative told him that activity was prohibited. The team center is used as an observation post for engineers and quality personnel, as well as a gathering place for employees when they take breaks. MBUSI considers the team centers in its plants to be work areas when the production line is running and nonwork areas when it is not.

Two months later, Gilbert again distributed union handbills—this time in the atrium of the plant during a shift change. Employees walk through the atrium on their way to work. HR initially told Gilbert and the other employees distributing handbills that they could not pass out the literature; however, a few hours later, MBUSI informed the employees it would permit distribution of literature in the atrium after all.

The union filed a charge with the National Labor Relations Board (NLRB), arguing that the company's solicitation and distribution policy violated the act. An administrative law judge (ALJ) agreed and ruled in favor of the union. The NLRB affirmed. MBUSI appealed the NLRB's decision to the 11th Circuit.

The 11th Circuit agreed with the NLRB in part, holding that MBUSI did not overcome the presumption of unlawfulness that arises when a solicitation and distribution policy is ambiguous or overbroad. An employer can rebut this presumption by demonstrating that the rule was applied in a manner that clearly conveyed the employer's intent to permit the protected activity; for example, by orally clarifying the rule with employees or uniformly allowing employees to engage in the protected activity.

MBUSI's policy was overly broad because employees could reasonably construe it to prohibit solicitation in areas used for both work and nonwork activities even if the employees were not on working time. To overcome the resulting presumption of unlawfulness, MBUSI had to clearly indicate to employees that it intended to permit protected solicitation. Because MBUSI did not do so, it violated the NLRA.

The 11th Circuit also affirmed the NLRB's holding that the MBUSI atrium was a mixed-use area and MBUSI violated the act when it prohibited employees from distributing handbills there. MBUSI could not contest the NLRB's ruling on this matter because it waived its right to do so when it failed to raise the issue before the NLRB.

However, the 11th Circuit sent the case back to the NLRB for new analysis of whether MBUSI had to permit employees to distribute literature in the team center during the pre-shift work period. Although the court agreed that the team center could be viewed as a mixed-use area, the ALJ neglected to determine which type of mixed use area it was—and that had a bearing on if and when MBUSI could prohibit solicitation and distribution.

There are two types of mixed-use areas: 1) permanent mixed-use areas, in which an area is perpetually used for both work and nonwork activities, and 2) converted mixed-use areas, in which employers temporarily convert work areas into areas for nonwork activities. Employers must allow solicitation and distribution at all times in permanent mixed-use areas. However, employers may prohibit solicitation and distribution in converted mixed-use areas when they are being used as work areas.

The NLRB will need to determine whether team centers are converted mixed-use areas during the pre-shift work period. If they are, then MBUSI violated the NLRA when it prohibited Gilbert from distributing pro-union fliers there.

Mercedes-Benz U.S. Int'l Inc. v. Auto Workers, 11th Cir., No. 15-10291 (Oct. 3, 2016).

Professional Pointer: Employers should be cautious when limiting solicitation and distribution in mixed-use areas and ensure they understand whether the area is a permanent mixed-use area or a converted mixed-use area so they can adjust their policies accordingly.

Michael A. Warner Jr. is an attorney with Franczek Radelet PC, the Worklaw® Network member firm in Chicago.  

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