Mercedes-Benz U.S. International, Inc. v. National Labor Relations Board , 838 F.3d 1128 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10291
________________________
Agency No. 10-CA-112406
MERCEDES-BENZ U.S. INTERNATIONAL, INC.,
Petitioner-Cross Respondent,
versus
INTERNATIONAL UNION, UAW,
Intervenor,
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross Petitioner
________________________
Petitions for Review of a Decision of the
National Labor Relations Board
_________________________
(October 3, 2016)
Before MARTIN, ANDERSON and BLACK, Circuit Judges.
BLACK, Circuit Judge:
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Mercedes-Benz U.S. International, Inc. (MBUSI) petitions this Court to
review the order of a three-member panel of the National Labor Relations Board
(NLRB or the Board) modifying and adopting as modified the recommended order
of the administrative law judge (ALJ). The Board found that MBUSI violated the
National Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act), in three ways:
(1) maintaining an overly broad solicitation and distribution rule that employees
would reasonably understand to prohibit solicitation in work areas by employees
not on working time of other employees not on working time; (2) prohibiting an
employee not on working time from distributing union literature in one of
MBUSI’s team centers, which are mixed-use areas; and (3) prohibiting employees
not on working time from distributing union literature in the MBUSI atrium, which
is a mixed-use area. Mercedes-Benz U.S. Int’l, Inc., 361 N.L.R.B. No. 120 (Nov.
26, 2014). On petition for review, MBUSI challenges each of these findings, and
the General Counsel of the NLRB cross-petitions this Court to enforce the Board’s
order. The Union, United Automobile, Aerospace, and Agricultural Implement
Workers of America (UAW), intervenes in support of the order. After review, we
enforce in part and remand in part with instructions.
I. BACKGROUND
First enacted in 1935, “a primary purpose of the National Labor Relations
Act was to redress the perceived imbalance of economic power between labor and
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management.” Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316, 85 S. Ct. 955, 966
(1965). The Act “sought to accomplish that result by conferring certain affirmative
rights on employees and by placing certain enumerated restrictions on the activities
of employers.” Id. Section 7 of the Act grants employees affirmative rights such
as the right to self-organize, to bargain collectively, “and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection.” National Labor Relations (Wagner-Connery Labor Relations) Act § 7,
29 U.S.C. § 157. Section 8 of the Act defends the Section 7 rights by prohibiting
an employer’s “interfer[ing] with, restrain[ing], or coerc[ing] employees in the
exercise of the rights guaranteed in [Section 7].” Id. § 8, 29 U.S.C. § 158(a)(1).
The Act also created and empowered the modern NLRB. See 29 U.S.C.
§§ 153–156. Within the NLRB, the Act created the office of the General Counsel,
which has final authority regarding investigations into unfair labor practices and
prosecution of complaints before the Board. Id. § 153(d). The Supreme Court has
described the Board’s role in interpreting and applying the Act as follows:
The Wagner Act did not undertake the impossible task of specifying
in precise and unmistakable language each incident which would
constitute an unfair labor practice. On the contrary that Act left to the
Board the work of applying the Act’s general prohibitory language in
the light of the infinite combinations of events which might be
charged as violative of its terms. Thus a rigid scheme of remedies is
avoided and administrative flexibility within appropriate statutory
limitations obtained to accomplish the dominant purpose of the
legislation.
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Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798, 65 S. Ct. 982, 985 (1945)
(quotation marks omitted).
Applying Section 8 to a common issue, the Board has long held that an
employer may not prohibit union solicitation by employees who are not on
working time 1 irrespective of whether they are in working or non-working areas of
the employer’s property. Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 621 (1962).
An employer also may not prohibit distribution of union literature by employees
who are in non-working areas and not on working time. Id. An employer may
prohibit distribution in working areas, however, because “the employer’s interest
in cleanliness, order, and discipline [in a working area] is undeniably greater than it
is in nonworking areas.” Id. at 620. This petition involves MBUSI’s alleged
interference with protected solicitation and distribution in violation of Section 8.
A. The MBUSI Solicitation and Distribution Rule
In Vance, Alabama, MBUSI operates two plants at which it manufactures
luxury automobiles. In May 2012, the UAW began a campaign to unionize
MBUSI’s employees in Vance. MBUSI has a policy of strict neutrality with
respect to unionization but maintains rules regarding solicitation and distribution of
non-work related material by employees on MBUSI property. In pertinent part and
1
“Working time” refers to “periods when employees are performing actual job duties,
periods which do not include the employees’ own time such as lunch and break periods.” See
Our Way, Inc., 268 N.L.R.B. 394, 395 (1983).
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for the pertinent time period, MBUSI’s solicitation and distribution rule read as
follows:
MBUSI prohibits solicitation and/or distribution of non-work related
materials by Team Members during work time or in working areas.
The General Counsel contends that this rule is overly broad because an employee
would reasonably interpret the rule to prohibit protected union solicitation.
Specifically, while an employer may not prohibit union solicitation in a working
area by an employee not on working time of an employee not on working time, the
final “or” in MBUSI’s written rule suggests that MBUSI bars all solicitation in
working areas.
B. MBUSI Team Centers
The MBUSI plant at issue in this case has 19 team centers, 15 of which are
immediately adjacent to the production line and all of which are adjacent to the
logistics aisle, an indoor path used by forklifts and other motorized vehicles to
transport parts in the assembly area. The few team centers that are not
immediately adjacent to the production line are between 10 and 60 feet from the
production line. Some team centers are completely or partially walled, while other
team centers are separated from the production line by chains.
Team centers serve several functions in the MBUSI production process.
They serve as offices for Group Leaders and Team Leaders and as observation
posts for engineers and quality personnel. From the team centers, these personnel
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supervise a wide variety of aspects of production along the line, including quality,
performance, machinery and tools, parts and equipment, output, shift assignments,
and safety. Team centers also serve as second offices for human resources staff
and upper management. Finally, at the beginning of each shift, Group Leaders use
team centers to conduct pre-production meetings, after which the incoming shift
relieves the outgoing shift. Employees often gather in their team center for an
indeterminate period before the pre-production meeting and may use the team
center during shift and meal breaks (although about half eat in MBUSI’s on-site
cafeteria).
MBUSI’s policy is to treat team centers as work areas when the production
line is running and as non-work areas when the production line is halted.
Typically, the production line runs 24 hours a day, 7 days a week, except for 30-
minute meal breaks, 10-minute shift breaks, and a brief pause during a shift
change. Per MBUSI policy, only during production line pauses (i.e. shift and meal
breaks) may MBUSI employees distribute non-work literature to other MBUSI
employees in the team centers.
On June 20, 2013, employee David Gilbert went to his team center a few
minutes before his shift began. Gilbert’s team center is completely walled and
approximately 10 feet from the production line. In the team center, Gilbert
distributed copies of a pro-union flyer to other off-duty employees. Gilbert’s Team
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Leader and a human resources representative each separately spoke with Gilbert
and informed him that he was not permitted to distribute literature in the team
center while the production line was moving. Gilbert was not disciplined, and the
conversation was polite and non-threatening.
C. The MBUSI Atrium
The MBUSI atrium is the first room that an employee enters after arriving
for work, parking, and passing through a security turnstile. The atrium is
approximately 60 feet wide by 100 feet long. In the atrium, MBUSI maintains a
security kiosk, a merchandise store, a medical office, a vehicle leasing desk, and an
Alabama Credit Union branch. MBUSI uses the atrium to provide company and
employee information through bulletin boards and television monitors. Because it
accommodates several hundred employees beginning and ending their shift each
day, the atrium becomes extremely congested and busy during shift change.
In late August, 2013, Gilbert, Kirk Garner, and several other MBUSI
employees were distributing UAW handbills in the atrium during a shift change.
Two MBUSI human resources representatives approached Garner and informed
him that MBUSI prohibits distribution of literature in the atrium. A few hours
later, the human resources representatives met with Garner and told him that
MBUSI management had decided to permit distribution of literature in the atrium.
Garner, a member of the UAW leadership council, informed Gilbert and
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understood from that conversation that employees were thereafter permitted to
distribute literature in the atrium.
II. PROCEDURAL HISTORY
On September 3, 2013, Garner initiated the underlying action charging
MBUSI with unfair labor practices. On February 21, 2014, the General Counsel
consolidated Garner’s charge with two charges filed by the UAW in October 2013
and January 2014 respectively. The ALJ conducted a three-day hearing in April
2014 and issued his decision in July 2014. The ALJ found that MBUSI had
violated the act as follows:
(a) Maintaining an overly broad solicitation and distribution rule
which employees reasonably would understand to prohibit
solicitation, in work areas, by employees not on working time of other
employees not on working time.
(b) Prohibiting an employee not on working time from distributing
union literature in one of [MBUSI’s] team centers, which are mixed
use areas within [MBUSI’s] plant.
(c) Prohibiting employees not on working time from distributing
union literature in the atrium, which is a mixed use area within
[MBUSI’s] plant.
Among other things, the ALJ recommended that the Board order MBUSI to
rescind its written solicitation and distribution rule and to cease and desist from
prohibiting distribution of literature in the team centers and atrium by employees
not on working time of employees not on working time.
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MBUSI filed with the Board 22 exceptions to the ALJ’s order. In its brief,
MBUSI primarily argued that the ALJ had misapplied the law regarding MBUSI’s
written solicitation and distribution policy, the team centers are work areas when
the production line is moving, certain employees were not supervisors, and the
atrium incident could not be a violation in light of its de minimis impact. On
November 26, 2014, the Board affirmed the ALJ’s decision and adopted the ALJ’s
proposed order with a slight modification to the remedy. 2 In a footnote, the Board
noted that one member of the Board found it “unnecessary to pass on the status of
[MBUSI’s] team centers that are adjacent to its production line.”
On January 23, 2015, MBUSI filed with this Court a petition for review of
the Board’s order (the Order). On February 9, 2015, the General Counsel filed a
cross-petition for enforcement.
MBUSI contends the Board erred in finding that MBUSI’s written
solicitation and distribution policy was unlawful because MBUSI could and did
rebut the presumption that its ambiguous rule interfered with or restrained
protected activity. Additionally, MBUSI insists the Order is overly broad in
imposing a remedy as to all team centers after explicitly considering only the team
center in which Gilbert was censured. MBUSI states more broadly that the
2
The Board ordered that MBUSI rescind its written solicitation and distribution rule and
gave MBUSI a few options to replace or amend its employee handbook. The Board also
required MBUSI to file a sworn certification with the NLRB attesting to the steps it has taken to
comply with the order.
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Board’s mixed-use findings as to both the team centers and the atrium represent an
unexplained departure from precedent. MBUSI also contends the Board erred in
failing to find special circumstances justifying the prohibition on distribution of
literature in team centers when the production line is moving.
The General Counsel answers that the Board need not find that MBUSI’s
employees subjectively believed the policy prohibited protected activity. Rather,
the test is objective, and an employer’s mere maintenance of an overly broad rule
constitutes a violation. As to the team centers, the General Counsel contends the
Order was consistent with precedent holding “[w]here an employer permits both
work and non-work activities of a non-incidental nature to occur in the same area,
the Board properly deems it a mixed use area.” Likewise, the General Counsel
states that MBUSI failed to support its special circumstances argument and the
ALJ’s decision was not limited to the team center in which Gilbert was censured.
Finally, the General Counsel contends MBUSI waived its right to challenge the
ALJ’s finding that the atrium is a mixed-use area by failing to raise it to the Board
in MBUSI’s exceptions to the ALJ’s proposed order.
MBUSI replies that its failure to challenge the ALJ’s holding was excused
by “extraordinary circumstances.” Specifically, while the ALJ found a violation
notwithstanding the de minimis effect of MBUSI’s interference, the Board changed
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the rationale for MBUSI’s violation and found a violation due to interference that
was not de minimis.
III. STANDARD OF REVIEW
The Court reviews de novo the Board’s legal conclusions and reviews for
substantial evidence the Board’s findings of fact. See NLRB v. Babcock & Wilcox
Co., 351 U.S. 105, 112, 76 S. Ct. 679, 684 (1956). “[A]n administrative order
cannot be upheld unless the grounds upon which the agency acted in exercising its
powers were those upon which its action can be sustained.” SEC v. Chenery
Corp., 318 U.S. 80, 95, 63 S. Ct. 454, 462 (1943). In other words, we may not
enforce an order of the NLRB on alternate grounds without remanding to the
Board for further consideration. See First Nat. Maint. Corp. v. NLRB, 452 U.S.
666, 672 n.6, 101 S. Ct. 2573, 2577 (1981).
“[I]n light of its experience,” the Board may fashion general rules and
presumptions regarding the lawfulness of employer restrictions “without the
necessity of proving the underlying generic facts which persuaded it to reach that
conclusion.” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 493, 98 S. Ct. 2463, 2470
(1978). Where the Board departs from prior decisions, however, it must explain
the reasons for the new approach. NLRB v. Sunnyland Packing Co., 557 F.2d
1157, 1160 (5th Cir. 1977) (“[A]n agency must either conform itself to its own
prior decisions or else explain the reason for its departure.”); see also Sharron
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Motor Lines, Inc. v. United States, 633 F.2d 1115, 1117 (5th Cir. 1981) (“[L]aw
does not permit an agency to grant one person the right to do that which it denies to
another similarly situated. There may not be a rule for Monday, another for
Tuesday, a rule for general application, but denied outright in a specific case.”
(quoting Mary Carter Paint Co. v. FTC, 333 F.2d 654, 660 (5th Cir. 1964) (Brown,
J., concurring))).3 Therefore, while we defer to the Board’s rational constructions
of the Act, Ga. Power Co. v. NLRB, 427 F.3d 1354, 1358 (11th Cir. 2005), such
deference does not extend to unexplained deviations from prior Board precedent,
Sunnyland Packing Co., 557 F.2d at 1160; NLRB v. WGOK, Inc., 384 F.2d 500,
503 (5th Cir. 1967).
IV. DISCUSSION
We consider in turn MBUSI’s written solicitation and distribution rule, the
distribution of union literature in MBUSI’s team centers, and the distribution of
union literature in the MBUSI atrium.
A. MBUSI’s Written Solicitation and Distribution Rule
A rule explicitly restricting protected activity is per se unlawful. Martin
Luther Mem’l Home, Inc., 343 N.L.R.B. 646, 646 (2004). An ambiguous or
overbroad rule that employees would reasonably understand to prohibit protected
3
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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activity, on the other hand, is presumptively unlawful. Our Way, 268 N.L.R.B. at
395 n.6. If a rule is presumptively unlawful, the employer can rebut the
presumption with evidence showing that the rule “was communicated or applied in
such a way as to convey an intent clearly to permit” the protected activity. Id.
(quoting Essex Int’l, Inc., 211 N.L.R.B. 749, 750 (1974)) (emphasis in original);
accord United Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 915 (D.C. Cir. 2004);
NLRB v. Aluminum Casting & Eng’g Co., 230 F.3d 286, 293 (7th Cir. 2000);
Motor Inn of Perrysburg, Inc. v. NLRB, 647 F.2d 692, 695 (6th Cir. 1981); Am.
Safety Equip. Corp. v. NLRB, 643 F.2d 693, 696 (10th Cir. 1981); Birmingham
Ornamental Iron Co. v. NLRB, 615 F.2d 661, 667 (5th Cir. 1980).
When an employer attempts to rebut the presumption of unlawfulness with
extrinsic evidence of either communication or application, the ALJ and the Board
ask whether the evidence shows that the employer “convey[ed] an intent clearly to
permit” the protected activity. Essex Int’l, 211 N.L.R.B. at 750. If so, the
overbroad rule does not represent a violation of the Act.4 Before considering the
Order, we review Board and circuit court cases applying this fact-based analysis.
4
Contrary to the General Counsel’s suggestion, the Essex rule permits an employer to
rebut the presumption of invalidity that attaches to any overbroad solicitation or distribution
workplace rule. See United Servs. Auto. Ass’n, 387 F.3d at 914 (applying Essex rule where
company banned solicitation and distribution “at any time in the work area and only during non-
working hours in non-work areas”); Aluminum Casting & Eng’g Co., 230 F.3d at 293 (applying
Essex rule where company banned solicitation “on company premises except when all concerned
are relieved from duty”); Birmingham Ornamental Iron Co., 615 F.2d at 667 (applying Essex
rule where company banned “ any soliciting on company premises and time”); Shaw, Inc., 350
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1. Cases applying the Essex rule
a. Cases finding rebuttal
In Standard Motor Products, in an effort to rebut the presumption of
unlawfulness, an employer offered evidence of both clarifying communication and
application. 265 N.L.R.B. 482, 483–84 (1982). The plant manager testified
without contradiction “that it was his practice in going over [the employer’s] rules
with new employees to tell them that breaks were their own time and they could do
what they wanted during breaks and lunch periods.” Id. at 484. The manager also
testified “that the rule was not applied or enforced against any kind of union talk,”
and the ALJ found that “there was no evidence in the record . . . to establish that
any employee was under the impression that he could not engage in union activity
during the lunch periods or breaktime.” Id. Even a witness called by the General
Counsel “testified that ‘everybody’ understood that breaks were their own free
time.” Id. The ALJ found, therefore, that the employer had rebutted the
presumption of invalidity “by properly orally clarifying to employees the extent of
application of the rule.” Id. The Board affirmed the ALJ’s decision. Id. at 482.
N.L.R.B. 354, 377 (2007) (applying Essex rule where company banned solicitation during
working time and “distribution of literature on company property at any time”); Laidlaw Transit,
Inc., 315 N.L.R.B. 79, 82 (1994) (applying Essex rule where company banned solicitation and
distribution “on company property, on company time”); Ichikoh Mfg., Inc., 312 N.L.R.B. 1022,
1022 (1993) (applying Essex rule where company banned solicitation and distribution of
literature “on company premises or during company business hours”).
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In The Broadway, the ALJ considered Standard Motor Products to stand for
the proposition that an employer could rebut the presumption upon showing that it
had clarified the rule “either through oral communication, or in such a manner as to
convey an intent to permit [lawful] solicitation.” The Broadway, 267 N.L.R.B.
385, 403 (1983). Although the employer maintained an overbroad solicitation rule,
the ALJ found that “employees were permitted to engage in a wide range of
organizing activities in the employee lounge and canteen during their break and
lunch periods with full knowledge of [the employer] and without interference.” Id.
The ALJ believed that “the uniform practice of applying the rule governing
solicitation and distribution of literature in a manner fully consonant with
[employees’ Section 7 rights] constitutes a fully efficacious clarification of the
rule.” Id. at 403–404. The ALJ reasoned that “[t]he objective interpretation
accorded the scope and limitation of [the employer’s] rule by employees directly
affected by it are more likely to be influenced by empirical experiences under the
literal application of the rule, than by oral assurances.” Id. at 404. The ALJ
therefore concluded that the employer had rebutted the presumption. Id. at 403.
The Board affirmed the ALJ’s decision. Id. at 385.
In American Safety Equipment Corp., the Tenth Circuit considered the
propriety of the Board’s having set aside a union election due to the employer’s
overbroad solicitation and distribution rule. 643 F.2d at 695. The court held that
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the Board “erroneously applied” the Essex rule. Id. at 696. Specifically, the court
noted the uncontradicted affidavits of one manager and two employees. The
manager averred that employees were informed of and were otherwise well aware
that the rules applied only to working time. The manager and the two employees
all agreed that employees openly distributed union material during nonworking
time without repercussion. Id. The court noted that the employer’s evidence of
clarifying written or verbal communication was limited but set aside the Board’s
order because “the evidence [was] uncontroverted that the rules were applied by
[the employer] to permit proper Union solicitation.” Id. The employer had
rebutted the presumption with uncontradicted evidence that it “applied the rules
lawfully, and that the employees understood [the rules] to permit [protected
activity].” Id. at 697.
In Motor Inn of Perrysburg, the Sixth Circuit considered a violation
regarding overly broad solicitation and distribution rules. 647 F.2d at 695. The
court noted the ALJ’s finding that the rules were never enforced, the lack of
evidence that employees were chilled in exercising their Section 7 rights, and that
“the evidence shows that the employees exercised these rights freely, openly, and
frequently.” Id. The court concluded, therefore, that “mere enactment of the
overly broad rules was not a violation of the Act.” 5 Id.
5
This quote would be questionable if taken out of context. See Lafayette Park Hotel, 326
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b. Cases finding no rebuttal
In Chicago Magnesium Castings Co., the ALJ found that an employer’s
ambiguous rule was a violation “even though it appears from evidence in the
record discussed herein, that [the rule] has not been consistently enforced.” 240
N.L.R.B. 400, 404 (1979). The ALJ held that the rule “was not cured by [the
employer’s clarifying letter] since this letter was not posted, but was simply
handed to [one employee] alone.” Id. The employer’s “publication of its
disclaimer was inadequate for the purpose of absolving it from liability for a
violation of the Act.” Id. The Board affirmed the ALJ’s decision. Id. at 400.
In Ichikoh Manufacturing, the Board disagreed with the ALJ’s application of
The Broadway and found that the employer had failed to rebut the presumption.
Ichikoh Mfg., 312 N.L.R.B. at 1022. The Board noted the ALJ’s “brief analysis” in
which the ALJ found dispositive the employer’s evidence that some employees
“have been permitted to solicit fellow employees and distribute campaign materials
to employees during their lunch and rest breaks in non-working areas.” Id. The
Board paraphrased the ALJ’s reasoning to be “that the maintenance of a
presumptively invalid no-solicitation rule is not violative of the Act, absent
evidence that the rule ha[s] been enforced in an unlawful way.” Id. The Board
N.L.R.B. 824, 825 (“Where the rules are likely to have a chilling effect on Section 7 rights, the
Board may conclude that their maintenance is an unfair labor practice, even absent evidence of
enforcement.”). In Motor Inn of Perrysburg, however, the ALJ made findings that suggested
open and knowing non-enforcement. 647 F.2d at 695; see also infra, note 7.
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rejected the ALJ’s reasoning and conclusion because there was no evidence that
the employer “clearly communicated” any clarification and because “[t]he fact that
some employees ignored the rule and were not disciplined fails to meet [the
employer’s] burden of establishing that it conveyed to employees ‘an intent clearly
to permit solicitation during breaktime or other periods when employees are not
actively at work.’” Id. (quoting Our Way, 268 N.L.R.B. at 395 n.6).6
In Laidlaw Transit, an employer argued that it “overcame the presumption
of invalidity” attached to its overbroad solicitation and distribution policy “by
communicating to its employees that the policy permitted [protected activity].”
315 N.L.R.B. at 82. The ALJ wrote that “[c]larifications of ambiguous rules or
narrowing interpretations of overly broad rules must be effectively communicated
to an employer’s work force before the Board will conclude that the impact of
facially illegal rules has been eliminated.” Id. at 83. The ALJ found no evidence
of the employer’s clarification and instead credited an employee’s testimony that
“no one in management ever explained to [the employee] what the meaning of the
rule was.” Id. Thus, although the employer argued that it had clarified the rule by
communication, the employer failed to meet its evidentiary burden on rebuttal. See
id. The Board affirmed the ALJ’s decision. Id. at 79.
6
The Board also mentions in a footnote that The Broadway does not support the ALJ’s
broad proposition because “[i]n that case, no exceptions were filed concerning the [ALJ’s]
finding that [the employer] had rebutted the presumptive invalidity of the no-solicitation rule.”
Ichikoh Mfg., 312 N.L.R.B. at 1022 n.5.
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In Shaw, the ALJ rejected an attempt by several employers to rebut the
presumption that their overly broad distribution rule was a violation of Section 8.
350 N.L.R.B. at 377. The ALJ found the employers’ sparse evidence to be
insufficient and listed showings the employers failed to make, such as “fail[ing] to
adduce any evidence that [the employers] told employees that distribution during
nonworking time was permitted [and failing to] show that [they] knowingly
tolerated distribution by employees during nonworking time.” Id. The ALJ
therefore held that the employers “failed to show that the rule means anything
other than what it says, viz., all distribution on company property at any time is
prohibited.” Id. The Board affirmed the ALJ’s decision as to this violation. See
id. at 358.
In Aluminum Casting & Engineering Co., the Seventh Circuit considered
whether an employer had rebutted the presumption of invalidity by posting a
lawful rule in its cafeteria. 230 F.3d at 293. Noting that “the rule posted in the
cafeteria made no reference to the [presumptively invalid rule], nor did it tell
employees which rule took precedence,” the court reasoned that “[c]onscientious
employees who had read both [rules] would not have known what was or was not
permitted.” Id. Therefore, the employer had failed to adequately rebut the
presumption. Id. at 294.
c. Summary
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The cases applying Essex indicate that, to clearly convey an intent to permit
protected activity, an employer’s communication must be broadly disseminated
and authoritative. See Aluminum Casting & Eng’g, 230 F.3d at 293; Laidlaw
Transit, 315 N.L.R.B. at 83; Standard Motor Prods., 265 N.L.R.B. at 48; Chicago
Magnesium Castings, 240 N.L.R.B. at 404. To clearly convey an intent to permit
protected activity with evidence of a clarifying application, the employers’
evidence should demonstrate that the employer openly and knowingly permitted
employees to engage in the protected activity notwithstanding the available
overbroad interpretation of the work rule. See Motor Inn of Perrysburg, 647 F.2d
at 695; Am. Safety Equip., 643 F.2d at 696; Shaw, 350 N.L.R.B. at 377; Ichikoh
Mfg., 312 N.L.R.B. 1022; The Broadway, 267 N.L.R.B. at 403–404. Without open
permission of protected activity, the employer’s clarification may not have reached
all employees. Without knowledge of the protected activity, an employer cannot
be said to have conveyed its intent to permit the activity.
Having attempted to articulate the line between sufficient and insufficient
evidence that an employer clearly conveyed an intent to permit protected activity,
we consider how (and whether) the Essex rule was applied in this case.7
7
The General Counsel attempts to cast doubt upon the Essex rule by discussing a series
of cases holding that “mere maintenance” of an overbroad rule is a violation. See Martin Luther
Mem’l Home, 343 N.L.R.B. at 646; Lafayette Park Hotel, 326 N.L.R.B. at 825. But neither case
expressly overrules Essex or Our Way, and neither case considers rebuttal of the presumption.
Rather, the “mere maintenance” cases support the proposition that the General Counsel need not
present evidence of enforcement to establish a prima facie case. See Beverly Health & Rehab.
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2. The ALJ’s application of the Essex rule
In the instant case, the ALJ correctly identified the Martin Luther Memorial
Home framework and found that MBUSI’s rule prohibiting “solicitation and/or
distribution of non-work related materials . . . during work time or in work areas”
did not explicitly prohibit protected activity but could reasonably be read to
prohibit solicitation in work areas notwithstanding the fact that the employees may
not be on working time. The presumption of unlawfulness therefore arose. The
ALJ next considered MBUSI’s proffered rebuttal evidence and found that MBUSI
“generally allowed employees to discuss the union in the workplace” and “truly
sought to be neutral” towards the UAW.
The ALJ next considered whether these findings rebutted the presumption of
unlawfulness. First, the ALJ acknowledged that “an employer can cure an
ambiguity in a work rule by communicating further with employees” and that
“[MBUSI’s] defense may extend beyond the argument that it did not enforce the
rule in its handbook.” Although the ALJ agreed with MBUSI that its non-
enforcement “would contribute to how employees reasonably would understand
Servs., Inc., 332 N.L.R.B. 347, 349 (2000) (citing Our Way for the proposition that “mere
maintenance” raises the presumption). It also bears mentioning that the absence of evidence of
enforcement differs significantly from affirmative evidence “that the employees exercised [their]
rights freely, openly, and frequently,” Motor Inn of Perrysburg, 647 F.2d at 695, or that the
employer engaged in “the uniform practice of applying the rule . . . in a manner fully consonant
with [employees’ Section 7 rights],” The Broadway, 267 N.L.R.B. at 403–404. Thus, we are
unpersuaded that the Essex rule no longer applies.
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[the rule’s] meaning,” the ALJ expressed skepticism that MBUSI’s evidence
showed that it had clearly conveyed to its employees an intent to permit solicitation
in work areas by employees not on working time. The ALJ believed that MBUSI’s
employees would continue to rely on the written rule “for a definitive answer” and
concluded that MBUSI therefore violated the Act by maintaining an overbroad
solicitation rule.
We see no reversible error in the ALJ’s analysis. MBUSI showed that it
generally permitted protected solicitation, but that is not necessarily enough. See
Ichikoh Mfg., 312 N.L.R.B. at 1022 (“The fact that some employees ignored the
rule and were not disciplined fails to meet [the employer’s] burden of establishing
that it conveyed to employees an intent clearly to permit [protected solicitation].”).
MBUSI bore the burden on rebuttal to prove that it applied the rule “in such a way
as to convey an intent clearly to permit” protected solicitation. Essex Int’l, 211
N.L.R.B. at 750. The ALJ did not believe that MBUSI clearly conveyed to
employees its intent to permit protected solicitation, and the ALJ’s finding is
supported by substantial evidence. We therefore enforce the Order and deny
MBUSI’s petition for review as to this issue. 8
B. Distribution of Union Literature in MBUSI Team Centers
8
The specific portions affected are as follows: paragraphs 1(a), 2(a), and 2(b) and the
first, fourth, and fifth “We Will Not” paragraphs in the Appendix to the Order.
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While the Act requires an employer to permit distribution of literature by
employees on non-working time in non-work areas, an employer may prohibit
distribution at any time in work areas. See Stoddard-Quirk Mfg., 138 N.L.R.B. at
621. If special circumstances necessitate a more restrictive rule to maintain
production and discipline, however, an employer may lawfully impose such a rule.
Id. at 617 n.4, 620.
When deciding whether an area is a work area as contemplated by Stoddard-
Quirk, “the Board has looked at the quality and quantity of work, which occurs in
the area at issue, and examines whether the work is more than de minimus [sic]
and whether it involves production.” Brockton Hosp., 333 N.L.R.B. at 1375; see
also Patio Foods v. NLRB, 415 F.2d 1001, 1003 (5th Cir. 1969) (holding that a
loading area was a work area notwithstanding the fact that employees used it for
ingress and egress because “[t]he loading of trucks is no less a vital part of the
production process because it is performed outside the plant building”). More
recently, the Board has deemed certain areas to be mixed-use areas, in which
distribution must be permitted. See, e.g., Transcon Lines, 235 N.L.R.B. 1163,
1165 (1978) enforced in relevant part, 599 F.2d 719 (5th Cir. 1979).
Mixed-use areas have been found in lunchrooms, 9 hallways, 10 parking lots,11
and driver assembly and waiting areas.12 At oral argument, the General Counsel
9
Kaynard ex rel. NLRB v. Palby Lingerie, Inc., 625 F.2d 1047, 1052 n.6 (2d Cir. 1980);
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suggested the Board has never established a test to determine whether an area is
mixed use. Certainly though, the numerous Board and circuit court cases finding a
mixed-use area or reviewing a mixed-use finding can inform us as to the
appropriate analysis.
1. A review of cases involving mixed-use areas
The “mixed-use area” moniker developed out of two different situations:
(1) a converted mixed-use area, which is a work area that periodically
accommodates non-work (or a mix of both work and non-work) for a fixed
duration;13 and (2) a permanent mixed-use area, which is an area that is perpetually
Superior Emerald Park Landfill, LLC, 340 N.L.R.B. at 457; Saisa Motor Freight, 333 N.L.R.B.
929, 934 (2001); Ford Motor Co., 315 N.L.R.B. 609, 612 (1994); G.H. Bass & Co., 258
N.L.R.B. 140, 144 (1981); Oak Apparel, Inc., 218 N.L.R.B. 701, 701–702 (1975); Rockingham
Sleepwear, 188 N.L.R.B. at 701.
10
DHL Express, Inc., 357 N.L.R.B. 1742, 1744 (2011); Found. Coal W., Inc., 352
N.L.R.B. 147, 150 (2008).
11
Metro-W. Ambulance Serv., Inc., 360 N.L.R.B. No. 124, 2014 WL 2448663 at *62
(May 30, 2014).
12
U.S. Postal Serv., 339 N.L.R.B. 1175, 1185 n.29 (2003); United Parcel Serv., 327
N.L.R.B. 317, 317 (1998); Arkansas-Best Freight Sys., Inc., 257 N.L.R.B. 420, 424 (1981);
Transcon Lines, 235 N.L.R.B. at 1165; see also Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 472
(5th Cir. 2001) (“[E]ntrance areas to plants, where timeclocks, vending machines, and bulletin
boards are located, are often mixed use areas.”).
13
Kaynard, 625 F.2d at 1052 n.6 (“Where, as here, a production area is regularly used by
employees as a lunch area with the ‘full knowledge and approval’ of the employer, the Board’s
position is that the area ceases, for the duration of the lunch period, to be a ‘work area’ where
distribution can be prohibited.”); Rockingham Sleepwear, 188 N.L.R.B. at 701 (holding that an
employer’s sewing room, a work area, ceased to be a work area during lunch because the
employer permitted employees to take their lunch in the sewing room and provided no alternate
facility); see also United Parcel Serv., 327 N.L.R.B. at 317 (finding drivers’ assembly room to
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used for both work and non-work activities. 14 An employer may never prohibit
distribution of literature in a permanent mixed-use area but may prohibit
distribution in a converted mixed-use area when the area is being used as a work-
area. At oral argument, the General Counsel urged the Court to consider this a
permanent mixed-use area case. MBUSI, however, contends that this is a
conversion case and that its policy permitting distribution when the production line
is stopped is therefore lawful. Based upon our review of conversion cases and
permanent mixed-use area cases below, we conclude that mixed-use analysis is
highly fact-intensive and often requires consideration of both conversion and
permanent mixed-use cases.
a. Conversion cases
The earliest conversion case, Rockingham Sleepwear, does not use the term
“mixed-use area” at all. See generally 188 N.L.R.B. 698. Rather, the case
identifies a specific period during which a work area “is not a ‘work area’ . . . but a
lunchroom where distribution may not lawfully be prohibited.” Id. at 701.
Rockingham Sleepwear involved a garment manufacturer that threatened to fire an
be mixed-use area “during… the prestart period”); Ford Motor Co., 315 N.L.R.B. at 612
(substantially similar to Rockingham Sleepwear); G.H. Bass & Co., 258 N.L.R.B. at 144 (same);
Oak Apparel, Inc., 218 N.L.R.B. at 701–702 (same).
14
See Metro-W., 2014 WL 2448663 at *62; DHL Express, Inc., 357 N.L.R.B. at 1744;
Found. Coal W., Inc., 352 N.L.R.B. 147, 150 (2008); U.S. Postal Serv., 339 N.L.R.B. 1175, 1185
n.29 (2003); Arkansas-Best Freight Sys., 257 N.L.R.B. at 424; Transcon Lines, 235 N.L.R.B. at
1165.
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employee who had distributed literature in the manufacturer’s sewing room. Id. at
699. The manufacturer had no cafeteria or other facility where employees could
eat. Id. Instead, the manufacturer would halt all production and permit employees
to eat in the sewing room. Id. The trial examiner, with the Board’s affirmance,
held that the sewing room was therefore not a work area during the lunch period.
Id. at 701. By restricting distribution of union literature by employees on their
lunch break in a converted lunchroom, the manufacturer had violated Section 8.
See id.
A few years later, in Oak Apparel, the Board considered a similar situation.
218 N.L.R.B. at 701. The employer, an apparel manufacturer, had prohibited
several employees who had placed union “leaflets on machines in [the employer’s]
production area during the employees’ 45-minute lunch break.” Id. As in
Rockingham Sleepwear, the employer had no designated lunch area and permitted
employees to eat lunch at their machines. Id. Unlike Rockingham Sleepwear,
“some employees (paid on a piece rate basis) continued to work at their machines
during the lunch period.” Id. The ALJ declined to find a violation but failed to
clearly state a reason. See id. at 709. Citing Rockingham Sleepwear, the Board
reversed the ALJ and found a violation because “[i]t [wa]s sufficiently clear from
the . . . record that the work area was being used principally as a lunchroom at the
time that the distribution of union literature was attempted.” Id. at 701–702.
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Years later, in Ford Motor Co., the Board affirmed an ALJ’s application of
Oak Apparel to a case involving an employer’s automobile engine test facility.
315 N.L.R.B. at 609–610, 612. The facility had four wings, each of which
contained several enclosed testing cells. Id. at 611. “Between every two cells was
a ‘control room’ with an interior glass window to permit the employee-technicians
seated at consoles adjacent to the window, to see into the cell and monitor the
tests.” Id. In the center of the control room was a table that employees frequently
used for lunch. Id. There was a separate cafeteria in the facility, but it was not
always open. Id. An employee was stopped by supervisors while distributing
union material during his lunch break to other employees who were both on their
lunch break and sitting at the center table. Id. The ALJ disagreed with the
employer’s contention that “the control rooms remained worksites regardless of
their periodic use as luncheon areas.” Id. at 612. The ALJ quoted the Board’s
finding in Oak Apparel that “the work area was being used principally as a
lunchroom at the time” and therefore held that the employer had violated the Act.
Id.
The Second Circuit considered the conversion issue in Kaynard ex rel.
NLRB v. Palby Lingerie, Inc., 625 F.2d at 1052 n.6. Citing Oak Apparel and
Rockingham Sleepwear, the court described the rule as follows:
Where, as here, a production area is regularly used by employees as a
lunch area with the “full knowledge and approval” of the employer,
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the Board’s position is that the area ceases, for the duration of the
lunch period, to be a “work area” where distribution can be
prohibited.
Id. Finding the rule to be reasonable, the Second Circuit affirmed a Board order
finding that the employer had violated the Act when it fired an employee for
repeatedly distributing union material in the production area during lunch breaks.
Id. at 1051, 1052 n.6.
The Sixth Circuit has also considered a conversion case, United Parcel
Service, Inc. v. NLRB, in which the employer had disciplined an employee-driver
for distributing a union newspaper in a check-in area, “where drivers congregate
before [their work day starts].” 228 F.3d at 775. The ALJ held that this “prestart
period” was “the only time during the day that drivers assemble together off the
clock.” United Parcel Serv., Inc., 325 N.L.R.B. 1, 4 (1997). In the check-in area,
drivers were “free to talk, read newspapers and magazines, or stand around until
their assigned starting time.” Id. Although the employer offered evidence of work
activities that took place in the check-in area at other times, the ALJ found that
“during the prestart period itself . . . the package drivers are not on the clock and
they do not perform work.” Id. at 5. Likewise, evidence that “a supervisor
[would] occasionally give some instructions or supplies to a driver during the
prestart period,” was “the exception and not the rule.” Id. The ALJ therefore held
that the check-in areas were non-work or mixed-use areas during the prestart
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period. Id. The Board agreed, stating “concerns for protecting the production
process . . . do not rise to the same level when an employer compromises a work
area by permitting nonwork use of it.” United Parcel Serv., Inc., 327 N.L.R.B.
317, 317 (1998).
On petition for review, the Sixth Circuit affirmed and enforced the Board’s
order. United Parcel Serv., Inc., 228 F.3d at 782. Citing Rockingham Sleepwear,
Oak Apparel, and Transcon Lines, the court described a mixed-use area as follows:
“while some people may use the area for work, most of the employees use it for
non-work purposes—such as a lunch area or a break area.” 228 F.3d at 776. The
court held that the ALJ’s findings of fact supported the mixed-use characterization
and distinguished several work-area cases as “deal[ing] with areas still retaining
the characteristics of a work area but where non-working employees happened to
be found, not areas transformed into lounge or break areas during certain times of
the day.” Id. at 777.
b. Permanent mixed-use area cases
In Transcon Lines, the Board challenged an interstate freight handling,
hauling, and storage company’s conduct in censuring an employee who distributed
material critical of the local union in the “drivers’ room” of the company terminal.
235 N.L.R.B. at 1164. The drivers’ room was open 24 hours per day to
accommodate the company’s around-the-clock operation. Id. Upon two hours’
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notice of a trip, a driver would go to the terminal, punch the timeclock in the
drivers’ room, pick up and complete necessary trip documents, and read any
company notices and bulletins. Id. A driver might also wait in the drivers’ room
for his or her companion driver. After a trip, a driver would complete travel
documents and other reports and may wait in the drivers’ room for transportation
home. Id. “While in the drivers’ room, the employees may drink coffee or eat
snacks from machines provided therein, and may converse freely with other
drivers.” Id. Some drivers would go to the drivers’ room to speak with other
drivers, but the room was not commonly used for loitering. Id.
The drivers’ room had two bulletin boards. Id. One belonged to the union,
and the other contained miscellaneous items such as solicitations and religious
material. Id. Although drivers were not paid for their time in the drivers’ room,
their mileage pay accounted for the fact that drivers must complete certain
paperwork for each trip. Id. at 1165. There was no other location at the
company’s terminal where drivers could congregate, meet, and exchange
information. Id.
The Board adopted the ALJ’s proposed order, which rejected for several
reasons the company’s assertion that it lawfully prohibited distribution in the
drivers’ room. Id. First, the company had no non-discriminatory solicitation and
distribution rule. Rather, the company permitted union distribution and
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miscellaneous non-protected distribution in the drivers’ room. Id. Second, to the
extent one could determine a rule, the company’s rule was impermissibly vague.
Id. Third, “the drivers’ room is, at best, a mixed use area, where drivers may either
work or relax.” Id. Fourth, the drivers’ room “is also the only area where drivers
can regularly communicate with one another on subjects of mutual concern.” Id.
The Board therefore found that the company had impermissibly prohibited
protected distribution in violation of the Act. On appeal, the Fifth Circuit affirmed
the Board’s finding regarding the drivers’ room but remanded the case upon
concluding that the remedy was overbroad relative to the ALJ’s factual inquiry and
findings. Transcon Lines, 599 F.2d at 721, 722.
In Superior Emerald Park Landfill, the Board affirmed the ALJ’s finding
that an employer unlawfully prohibited distribution of union literature in a
company lunchroom. 340 N.L.R.B. at 449, 457. During a union representative
campaign, an employee had placed union literature on a table in the lunchroom,
which was also used for occasional meetings. Id. at 453, 457. The employer used
the lunchroom tables for distribution of information to employees, and witnesses
testified to occasional employee use for things such as Girl Scout cookie sign-up
sheets and other noncompany activities. Id. at 453–54. Citing United Parcel
Service and Rockingham Sleepwear, the ALJ stated “if an area is used for
production during most of the day, but serves as a lunchroom during the lunch
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period, distribution of literature may not be prohibited.” Id. at 456. The ALJ then
noted that the occasional meetings in the lunchroom were “relatively infrequent
and there is no doubt that the primary purpose of the room was as a lunch facility.”
Id. at 457. Therefore, the employer unlawfully prohibited distribution of union
literature in its lunchroom, a mixed-use area. Id.
In Foundation Coal West, a two-member panel of the Board 15 affirmed the
ALJ’s finding that a coal mining company violated the Act by calling a sheriff to
remove off-duty employees who were distributing union literature in the
company’s hallway. 352 N.L.R.B. at 147–49. In the hallway, one could find “the
timeclock, . . . a bench where employees congregate to socialize and eat their lunch
opposite the coffeemaker and microwave, various bulletin boards, three vending
machines, an ice machine, . . . desks[,] and cabinets for first aid supplies, forms,
medicine, and ear plugs.” Id. at 148 (footnotes omitted). At the beginning of each
shift, the employees would meet in a room off the hallway for a short pre-shift
meeting. Id. “Occasionally the dispatcher will tell an employee of an assignment
change in the hallway if they cannot contact the employee in the [room off the
hallway].” Id. at 148–49. Some employees, blasters and drillers, would speak
with each other or their supervisors in the hallway during shift change. Id. at 149.
15
The Supreme Court later determined in a different case that a two-member panel may
not exercise the Board’s delegated authority. See New Process Steel, L.P. v. NLRB, 560 U.S.
674, 130 S. Ct. 2635 (2010). The ALJ’s analysis, in which two Board members concurred, is
nevertheless informative. See DHL Express, Inc. v. NLRB, 813 F.3d 365, 377 n.2 (D.C. Cir.
2016).
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The time within which these work discussions would take place in the hallway was
minimal, “as little as 15 minutes out of a 12-hour workday.” Id.
After briefly discussing Transcon Lines and United Parcel Service, the ALJ
found significant the fact that the employer’s “main function is the digging,
removal, sorting, and distribution of coal.” Id. at 150. According to the ALJ, “[i]t
is the main production areas of an employer’s facility where the hazards of littering
and maintaining order are paramount over employee distribution of literature.” Id.
Although there was “no doubt that some work incidental to [the employer’s] main
function takes place in the [h]allway,” the hallway was at best a mixed-use area,
“where both socializing and nonproduction work, incidental to [the employer’s]
main function, the production of coal, take place.” Id. Therefore, the employer
had violated the Act. In its brief affirmance, the two-member panel stated “we
agree that the hallway at issue was a mixed use area in which extensive nonwork
activities, such as dining and socializing, occurred and that, consequently, under
extant Board precedent, [the employer] was not free to ban distribution of union
literature in the hallway.” Id. at 147 n.1.
Recently, the D.C. Circuit considered the Board’s standards for mixed-use
areas. See DHL Express, Inc. v. NLRB, 813 F.3d 365 (D.C. Cir. 2016). In DHL
Express, an international shipping company on several occasions interrupted an
employee trying to distribute union literature in a hallway in the company’s United
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States hub facility. DHL Express, Inc., 357 N.L.R.B. 1742, 1743 (2011). The
employer argued that its hallway was a work area because (1) employees traverse
the hallway on their way to and from work and during the infrequent times when
they must assist with a task in the company’s ramp area, (2) on a less than daily
basis, quality control personnel carry misplaced or damaged packages through the
hallway for two or three minutes each trip, and (3) on a less than daily basis, the
employer brings new employees or other visitors in the hallway for five to ten
minutes for a tour. Id. at 1744. The evidence indicated that the employer had on
several occasions permitted non-work solicitation and distribution activity in the
hallway such as gymnasium membership solicitation and distribution of t-shirts
hats, and raffle tickets in conjunction with major sporting events. Id. at 1745. The
ALJ found that “the hallway area is used for recreation as well as some work but
[the employer] compromised the hallway area by permitting nonwork use of it.”
Id. Therefore, the employer had violated the Act.
The Board affirmed but disagreed on the basis for affirmance. Id. at 1742.
Two members based their affirmance on the employer’s interference with
distribution in a mixed-use area, stating that “an employer’s right to preclude
distribution of literature in working areas does not extend to mixed-use areas.” Id.
at 1742 n.1. One member believed that “the hallway could reasonably be
considered a working area even if all activity within that area did not involve
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employees performing work.” Id. That member would have affirmed on the
ALJ’s alternate finding that the employer discriminated against union activity in its
enforcement of the no-distribution rule. Id.
The D.C. Circuit enforced the Board’s order and discussed at length the
employer’s challenge to the ALJ’s mixed-use finding. See DHL Express, 813 F.3d
at 375–78. According to the court, “[t]he Board has for decades—with court
approval—found areas in which minimal or solely incidental work is conducted are
to be considered ‘mixed-use’ areas in which a prohibition on distribution during
non-work time has to be justified by special circumstances.” Id. at 375 (citing
United Parcel Serv., 327 N.L.R.B. 317; Transcon Lines, 235 N.L.R.B. at 1165;
Rockingham Sleepwear, 188 N.L.R.B. at 701). The employer argued the ALJ
improperly broadened the test for a mixed-use area when he stated that the hallway
was not used “exclusively” for work, but the court disagreed, stating “a miniscule
amount of nonwork will not now convert a work area into a ‘mixed use’ area.” Id.
at 376. Rather, a mixed-use area is one in which “very little work occurs.” Id.
The court agreed with the analysis in Foundation Coal West and considered it
persuasive that only incidental, nonproduction work took place in the hallway. Id.
at 377–78. Therefore, the court found substantial evidence supporting the ALJ’s
mixed-use-area finding and enforced the Board’s order. Id. at 378, 380.
c. Summary of the mixed-use area cases
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The mixed-use area cases reflect the variance typical of a fact-intensive
analysis. The core considerations for both conversion and permanent mixed-use
areas are (1) the volume of work and non-work activity; (2) whether the non-work
activity is limited to specific time periods; and (3) the nature of work and non-
work activity. Cf. DHL Express, 813 F.3d at 376 (“[T]he ALJ carefully considered
the type, duration, and frequency of work and nonwork occurring in the hallway
prior to concluding that it should be considered a ‘mixed-use’ area.”); United
Parcel Serv., 228 F.3d at 776; Kaynard, 625 F.2d at 1052 n.6.
2. The ALJ’s findings and the Order
The ALJ found that the team centers are mixed-use areas and that MBUSI
therefore interfered with protected activity in violation of the Act when it
reprimanded Gilbert for distributing union literature in his team center in the
minutes before shift change. In deciding the team centers are mixed-use areas, the
ALJ noted that the team centers have refrigerators, microwave ovens, and picnic
tables in the same general area as filing cabinets, desks, and computers. The ALJ
also gave weight to the fact that employees use the team centers for lunch, citing
Superior Emerald Park Landfill, 340 N.L.R.B. at 456 (“[I]f an area is used for
production during most of the day, but serves as a lunchroom during the lunch
period, distribution of literature may not be prohibited.”). The ALJ considered
MBUSI’s argument regarding the proximity of team centers to the production line
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and the logistics line as an argument not that team centers are work areas but that
MBUSI is entitled to an exception due to special circumstances. The ALJ declined
to rule on special circumstances as to the other 18 team centers but found that
MBUSI failed to demonstrate special circumstances as to Gilbert’s team center.
The Board affirmed. One member of the Board noted separately that he
considered it unnecessary for the Board to determine the status of any team center
other than the one in which the June 20, 2013 incident occurred. Among other
remedies, the Board ordered MBUSI to cease and desist from prohibiting
employees not on working time from distributing literature in mixed-use areas,
which the Board defined to include all of MBUSI’s team centers.
3. The Board’s errors
We conclude the Board’s affirmance was error for two reasons. First, the
ALJ failed to recognize the distinction between converted and permanent mixed-
use areas and failed to analyze the relative volume and nature of work and non-
work activity in the team centers. Second, the ALJ imposed a remedy that
exceeded the scope of his factual inquiry and findings. We therefore decline to
enforce the Order as to this violation and remand to the Board with instructions as
stated below.
a. The inadequately supported mixed-use area finding
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Team centers are walled or chained areas within the production area of
MBUSI’s plant. MBUSI uses the team centers daily in its production process as
offices for Group Leaders and Team Leaders, as observation posts for engineers
and quality personnel, and as the marshalling place for pre-production meetings.
At least 15 of the 19 team centers are immediately adjacent to the production line,
and all of the team centers are adjacent to the logistics aisle, an indoor path used by
forklifts and other motorized vehicles to transport parts in the assembly area. The
work that takes place in the team centers could hardly be described as “non-
production” or “incidental” to MBUSI’s main function, manufacturing
automobiles. On the other hand, the General Counsel properly notes that
employees often gather in the team centers for an indeterminate period before the
pre-production meeting and use the team center during shift and meal breaks.
During this time, employees may take advantage of the refrigerators, microwave,
and picnic tables that can be found in the team centers.
The ALJ reasoned that “[t]he fact that the team centers serve as meeting and
eating places for off-the-clock employees taking lunch or break time and also as
offices for [MBUSI] clearly weighs in favor of finding the centers to be mixed use
areas.” The ALJ therefore held that “the team centers, which employees use to eat
lunch while on nonworking time, properly are classified as mixed use areas.” In
support of its conclusion, the ALJ quotes Superior Emerald Park Landfill, which
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observed that “if an area is used for production during most of the day, but serves
as a lunchroom during the lunch period, distribution of literature may not be
prohibited.” 340 N.L.R.B. at 456 (citing United Parcel Serv., 327 N.L.R.B. 317).
Although the ALJ relied exclusively upon non-work use during lunch and break
periods, the Order does not limit the mixed-use finding to any specific period of
time. This was error.
Some language in Superior Emerald Park Landfill appears to suggest that if
a production area is used for lunch, distribution must be perpetually allowed in the
area. See 340 N.L.R.B. at 456. In fact, when a production area is converted to
non-work use for a discrete period (such as lunch), the conversion cases hold that
distribution may not be prohibited during the non-work period. See United Parcel
Serv., 327 N.L.R.B. at 318 (affirming and adopting an order that required the
employer to cease and desist enforcing its no distribution rule “prior to the starting
time of the package drivers,” 325 N.L.R.B. at 12 (emphasis added)); Rockingham
Sleepwear, 188 N.L.R.B. at 701 (“[I]n effect, the sewing room, for the duration of
the lunch period, is not a ‘work area’ . . . but a lunchroom where distribution may
not be lawfully prohibited.” (emphasis added)).16 This is the essence of the
distinction between converted mixed-use areas and permanent mixed-use areas.
16
We attribute Superior Emerald Park Landfill’s incomplete statement of the holding in
conversion cases to the fact that Superior Emerald Park Landfill is not a conversion case at all.
In Superior Emerald Park Landfill, the room was used for “occasional meetings,” but “the
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The ALJ’s analysis, affirmed by the Board without comment, does not
support the conclusion that the team centers are permanent mixed-use areas. The
only non-work use to which the ALJ refers occurs during the lunch period and
scheduled breaks. This evidences conversion, not perpetual mixed use.
The ALJ’s analysis cannot support a permanent mixed-use finding for a
second reason: the ALJ failed to “carefully consider[] the type, duration, and
frequency of work and nonwork occurring in the [team centers] prior to concluding
that [they] should be considered [] ‘mixed-use’ area[s].” See DHL Express, 813
F.3d at 376. The ALJ made no finding regarding the relative volume of work and
non-work that takes place in the team centers or regarding the number of
employees who use the team centers for each. See id. at 375–77; United Parcel
Serv., 228 F.3d at 776. Nor did the ALJ consider whether the work that takes place
in the team centers is essential or merely incidental to production. See DHL
Express, 813 F.3d at 375–77. As discussed above, the ALJ did not find that team
centers are perpetually used for both work and non-work activities. Thus, the
ALJ’s analysis fails to support a conclusion that the team centers are permanent
mixed-use areas.
primary purpose of the room was as a lunch facility.” 340 N.L.R.B. at 457. That is a far cry
from “an area [that] is used for production during most of the day.” Id. at 456. Thus, Superior
Emerald Park Landfill does not support broadening the remedy in converted mixed-use cases.
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Although we find that the ALJ misapplied the mixed-use test to conclude
that the team centers are permanent mixed-use areas, we note that the Order may
be supportable in a narrowed form. As discussed above, if an employer
temporarily converts a work area to non-work or mixed-use, the employer may not
prohibit distribution of literature among employees on non-working time. See
United Parcel Serv., 325 N.L.R.B. at 4, 5. The ALJ’s mixed-use analysis was
fixated upon the lunch period and scheduled breaks (periods during which MBUSI
already permits distribution), but the ALJ’s findings of fact include references to a
third time period. In the several minutes before a shift change, off-the-clock
employees gather in the team centers in anticipation of their shift. During that
same period, supervisors in the team centers prepare for a pre-shift meeting. It is
during this period that the alleged violation underlying this issue took place.
We believe that Board precedent may have supported a conclusion that the
team centers are converted mixed-use areas during the pre-shift period. The ALJ
did not analyze the effect of the pre-shift period on the work status of the team
centers, however, and we may not adopt alternate grounds to enforce a Board
order. See First Nat. Maint. Corp., 452 U.S. at 672 n.6, 101 S. Ct. at 2577
(“Because the court adopted different grounds for enforcement of the Board’s
order, it was error to enforce without a remand to the Board for further
examination of the evidence and proper factfinding.”). We therefore decline to
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enforce the Order17 but remand for the Board to consider whether the evidence and
its precedent support the narrower finding that MBUSI’s team centers are
converted mixed-use areas during the pre-shift period.
b. The overbroad remedy
Even if we agreed with the Board’s mixed-use finding, we would be
compelled to deny enforcement of the Order as written because it imposes a
remedy that exceeds the scope of its factual findings by a factor of 19. In
compliance with Stoddard-Quirk Manufacturing, after concluding that all 19 team
centers are mixed-use areas, the ALJ considered whether special circumstances
justified MBUSI’s prohibition on distribution of literature in team centers when the
production line is moving.
Before the ALJ, MBUSI offered testimony regarding the pace of its just-in-
time production process, the proximity of team centers to the production line and
the logistics aisle, the dangers associated with vehicular traffic in the logistics
aisle, and MBUSI’s safety concerns regarding distribution of literature. The ALJ
noted the persuasiveness of some of MBUSI’s testimony, stating as follows:
The team center depicted in [MBUSI’s offered] video was so close to
the production line and so proximate to the hustle and bustle of the
assembly process it produced an intuitive feeling that this busy place
certainly must be a work area, even if there is a picnic table for
workers to use on breaks and at lunch. At the least, it created the
17
The specific portions affected are as follows: the last four words of paragraph 1(b) and
the words “team centers and” in the Appendix to the Order.
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impression that unique circumstances warranted an exception to the
general rule that an employer could not prohibit distribution of union
literature in a mixed use area.
(emphasis added). The ALJ noted the significant differences among the 19 team
centers, however, and concluded that “it would not be appropriate to generalize
from the video.” The ALJ concluded that MBUSI failed to meet its burden of
showing special circumstances as to the team center where Gilbert was distributing
union literature, “which is the only team center relevant to the allegations.”
Therefore, the ALJ reasoned, “I need not, and do not, decide whether special
circumstances existed at any other team center, such as the one depicted in the
video.”
Although only one team center was relevant to the inquiry and the ALJ
explicitly declined to consider whether MBUSI met its burden of proving special
circumstances at any of the other 18 team centers, the Order requires MBUSI to
cease and desist from distributing literature in “its team centers.” Nothing in the
Order limits its scope to the sole team center that the ALJ considered. Rather, even
though MBUSI’s evidence “created the impression that unique circumstances
warranted an exception to the general rule” at least as to one team center, the Order
uniformly applies to all team centers. This was error.
As the former Fifth Circuit noted in Transcon Lines, when the Board
“narrow[s] the case for decision purposes,” it may not then “broaden it to the
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widest possible limits for purposes of remedy.” 599 F.2d at 722. Because the ALJ
and the Board declined to consider MBUSI’s evidence of special circumstances as
to the 18 team centers not at issue, the Order cannot impose a remedy as to those
team centers. Therefore, on remand, absent additional factfinding regarding
special circumstances at the other team centers, the Board may consider a violation
and a remedy only as to the team center at which Gilbert attempted to distribute
union literature.
C. Distribution of Union Literature in the MBUSI Atrium
Before the ALJ, MBUSI contended that any interference with Section 7
rights was de minimis because within hours of stopping Garner and Gilbert’s
handbilling MBUSI retracted its position prohibiting distribution in the atrium.
Alternatively, MBUSI argued that its atrium is a work area where it can lawfully
prohibit distribution. The ALJ found that MBUSI’s atrium was at most a mixed-
use area and that MBUSI therefore violated the Act by prohibiting Garner and
Gilbert from distributing union literature in the atrium during their non-work time.
The ALJ agreed that MBUSI’s interference was de minimis but nevertheless
recommended the Board find a violation because “[MBUSI’s] continued position
that the atrium is a work area leaves open the possibility that it might decide to
reverse its distribution policy sometime in the future.”
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MBUSI filed 22 exceptions to the ALJ’s decision and recommended order,
none of which identified the ALJ’s finding the atrium to be a mixed-use area. In
fact, MBUSI expressly disavowed its previous argument that the atrium was a
work area, stating that it wished to “remov[e] that issue from consideration.”
Instead, MBUSI insisted that any interference with protected activity was de
minimis and not a sufficient basis for a violation. The Board disagreed and
affirmed the ALJ as to both the mixed-use finding and the violation.
Before this Court, MBUSI contends the Board erred in concluding that the
MBUSI atrium is a mixed-use area.18 We need not address this possible error,
however, because MBUSI waived the issue by failing to raise it before the Board.
Section 10 of the Act precludes judicial review of an error not first raised
before the Board absent extraordinary circumstances. 29 U.S.C. § 160(e). We find
nothing extraordinary in the circumstances that led MBUSI to make the tactical
decision to focus its argument before the Board on the de minimis issue. We also
find nothing extraordinary in the fact that the Board would not have entertained a
motion for reconsideration on the mixed-use issue for the same reason we do not
consider the issue: waiver. With nothing to review, we summarily enforce the
Order as to this violation.
18
With Court approval, MBUSI withdrew from consideration its de minimis argument.
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V. CONCLUSION
For the foregoing reasons, we enforce the Order with the exception of the
last four words of paragraph 1(b) and the words “team centers and” in the
Appendix. We remand to the Board with instructions to consider whether
MBUSI’s team centers are converted mixed-use areas during the pre-shift period.
If so, the Board should either narrow the scope of the Order to Gilbert’s team
center or conduct additional factfinding regarding special circumstances at the 18
team centers the ALJ did not consider.
Enforced in Part, Enforcement Denied in Part, and Remanded in Part
with Instructions.
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MARTIN, Circuit Judge, dissenting in part:
I agree with the Majority’s ruling about the atrium violation and Mercedes-
Benz’s solicitation and distribution policy. I also agree with the Majority that the
ALJ’s remedial order regarding the team centers was overbroad. The order should
be remanded to the Board to either narrow its scope or do more factual
development about special circumstances at the eighteen team centers for which
the ALJ did not make findings.
However, I do not agree with the Majority’s holding that “the ALJ failed to
recognize the distinction between converted and permanent mixed-use areas and
failed to analyze the relative volume and nature of work and non-work activity in
the team centers.” The Board does not impose this distinction on its factfinders,
and I believe it exceeds our institutional role to create these categories and require
the Board to apply them.
The ALJ and the Board followed the Board’s precedent in designating the
team centers as mixed-use areas after finding and reviewing the facts. I would
affirm the Board’s ruling that the team center where Mr. Gilbert distributed union
materials is a mixed-use area. I respectfully dissent.
I.
We apply a narrow and deferential standard of review to Board decisions.
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“[T]he findings of the Board with respect to questions of fact if supported by
substantial evidence on the record considered as a whole shall . . . be conclusive.”
29 U.S.C. § 160(f). “So long as the Board has made a plausible inference from the
record evidence, we will not overturn its determinations, even if we would have
made different findings upon a de novo review of the evidence.” Cooper/T. Smith,
Inc. v. NLRB, 177 F.3d 1259, 1261 (11th Cir. 1999); see also NLRB v. McClain of
Ga., Inc., 138 F.3d 1418, 1424–25 (11th Cir. 1998) (“Our standard of review is
limited . . . to determining whether the Board’s inference . . . is supported by
substantial evidence—not whether it is possible to draw the opposite inference.”).
We also defer to the Board’s expertise in developing rules that create legal
presumptions. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798, 65 S. Ct.
982, 985 (1945) (The National Labor Relations Act “left to the Board the work of
applying the Act’s general prohibitory language in the light of the infinite
combinations of events which might be charged as violative of its terms. Thus a
‘rigid scheme of remedies’ is avoided and administrative flexibility within
appropriate statutory limitations obtained to accomplish the dominant purpose of
the legislation.”); Beth Israel Hosp. v. NLRB, 437 U.S. 483, 492, 98 S. Ct. 2463,
2469 (1978) (“The effect of [the Board’s] rules is to make particular restrictions on
employee solicitation and distribution presumptively lawful or unlawful . . . .”).
For example the distribution of union materials in nonworking areas is
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presumptively lawful. See Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 621
(1962). Congress gave the Board authority to use its national labor relations policy
expertise to formulate rules that balance conflicting legitimate interests such as
employee-organization rights and employer-property rights. Beth Israel Hosp.,
437 U.S. at 492, 500–01, 98 S. Ct at 2469, 2473. Thus, “[t]he rule which the
Board adopts is judicially reviewable for consistency with the Act, and for
rationality, but if it satisfies those criteria, the Board’s application of the rule, if
supported by substantial evidence on the record as a whole, must be enforced.” Id.
at 501, 98 S. Ct at 2473–74. Instead of reviewing the Board’s rules, the majority
creates its own rule and faults the ALJ for not applying it.
II.
The Majority’s opinion presents the distinction between “permanent” and
“converted” mixed-use areas as a framework established by the Board. Indeed, the
Majority cites “45 years of Board precedent” to support its distinction. But I read
none of the cases it cites to state a rule creating or even distinguishing between two
types of mixed-use categories. It is beyond our deferential role to create a rule and
then hold that the ALJ erred in failing to apply it. See NLRB v. Curtin Matheson
Sci., Inc., 494 U.S. 775, 786, 110 S. Ct. 1542, 1549 (1990) (“[T]he NLRB has the
primary responsibility for developing and applying national labor policy.”).
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The Majority recognizes that the Board has never clearly established a test
for deciding whether an area is mixed-use. And it is the Board that has the
expertise to establish a test if it decides one is necessary. The Board can also
choose to grant its ALJs flexibility in crafting solutions for a circumstance that is
unique. See Beth Israel Hosp., 437 U.S. at 500–01, 98 S. Ct at 2473 (“[I]t is to the
Board that Congress entrusted the task of ‘applying the Act’s general prohibitory
language in the light of the infinite combinations of events which might be charged
as violative of its terms.’” (quoting Republic Aviation, 324 U.S. at 798, 65 S. Ct. at
985)). What matters here is that the Board has extended this flexibility to ALJs
charged with making mixed-use determinations.
The Board’s allowance of flexibility to ALJs in designating mixed-use areas
results in some variations in that designation. For example, in Transcon Lines, 235
N.L.R.B. 1163 (1978), the ALJ found generally that “the drivers’ room is, at best, a
mixed use area, where drivers may either work or relax.” Id. at 1165. But in In Re
United Parcel Serv., 325 N.L.R.B. 1 (1997), the ALJ ruled “that the check-in areas
are used as nonwork or, at most, mixed use areas between 7:30 a.m. and the
drivers’ start time of 8:30 a.m.,” thus limiting the area’s mixed-use status based on
the time of day. Id. at 3.
The Majority chooses one understanding of the Board’s approach to these
cases and makes it a new rule for how ALJs must analyze the facts of all cases
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about distributing union materials. Under the Majority’s rule, an ALJ will now be
required “to analyze the relative volume and nature of work and non-work
activity” in a given area. If both work and nonwork activities “perpetually” 1 occur
in an area, then the Majority allows the ALJ to find that it is a “permanent mixed-
use area.” If the activities are not “perpetual,” then the Majority directs the ALJ to
consider whether an area is “converted” to mixed-use during specific times of the
day. The Majority’s requirements impose a framework of analysis on ALJs the
Board has never adopted. Beyond that, the Majority’s requirement that ALJs
consider time-limitations in “converted” mixed-use cases narrows the Board’s
existing rule, which already limits distribution to nonworking time. See DHL
Express, Inc., 357 N.L.R.B. 1742, 1743 (2011) (“The Board has long held that
rules prohibiting distribution of literature are presumed valid unless they extend to
activities during nonworking time and in nonworking areas.”) The Majority, while
no doubt well intentioned, is doing the Board’s job for it.
The Majority also cites the D.C. Circuit for support. That court said that
“[t]he Board has for decades—with court approval—found areas in which minimal
or solely incidental work is conducted are to be considered ‘mixed-use’ areas in
which a prohibition on distribution during non-work time has to be justified by
1
The Majority does not explain this “perpetually” standard. Is it that an area can be used
at all times for either work or nonwork activities or both? Or is it that an area is used for both
types of activities at all times? What about 80% usage of a space for either? 50%? 33%?
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special circumstances.” DHL Express, Inc. v. NLRB, 813 F.3d 365, 375 (D.C. Cir.
2016) (citing United Parcel Serv., 327 N.L.R.B. 317 (1998); Transcon Lines, 235
N.L.R.B. at 1165; Rockingham Sleepwear, 188 N.L.R.B. 698, 701 (1971)); see
also United Parcel Serv., Inc. v. NLRB, 228 F.3d 772, 776 (6th Cir. 2000) (citing
Transcon Lines and Rockingham to support a similar proposition). But two out of
three of the citations the D.C. Circuit gave for this proposition are cases the
Majority gives as examples of “converted mixed-use” (Rockingham and United
Parcel Serv.) and the third is offered by the majority as a “permanent mixed-use”
case (Transcon Lines). See DHL Express, 813 F.3d at 375. This contrasting view
of identical case law given by two Circuit courts is more evidence that the Majority
created its own framework instead of deferring to the Board’s flexible approach. I
do not understand the Board to have limited the definition of “mixed-use” to either
of the categories imposed by the Majority. Rather, the Board has left room for the
ALJs to designate mixed-use areas, or not, based on the various situations that
come before them. See, e.g., Ford Motor Co., 315 N.L.R.B. 609, 612 (1994)
(discussing specific employee activities at times of specific distribution incidents
to determine whether there was a distribution violation); Transcon Lines, 235
N.L.R.B. at 1164–65 (referring to several fixtures and functions of a drivers’ room
in determining that it was “at best, a mixed use area, where drivers may either
work or relax”); Rockingham, 188 N.L.R.B. at 701 (discussing plant schedule and
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use of spaces at various times before determining when distribution must be
allowed).
III.
I view the ALJ’s decision that the team center was a mixed-use area to be
supported by substantial evidence. In Stoddard-Quirk, the Board held that
employees can distribute union literature in nonworking areas on the employer’s
premises. 138 N.L.R.B. at 621. In Transcon Lines, the Board extended that
holding to mixed-use areas, meaning areas where employees “may either work or
relax.” 235 N.L.R.B. at 1165. And the Board has reasoned that “[t]he concerns for
protecting the production process which were at issue in Stoddard Quirk do not rise
to the same level when an employer compromises a work area by permitting
nonwork use of it.” United Parcel Serv., 327 N.L.R.B. at 317; accord DHL
Express, 357 N.L.R.B. at 1744. Further, the Board has recognized that “[i]t is the
main production areas of an employer’s facility where the hazards of littering and
maintaining order are paramount over employee distribution of literature.” Found.
Coal W., Inc., 352 N.L.R.B. 147, 150 (2008). However, aside from these broader
observations, the Board also recognizes that special circumstances can call for
more restrictive rules. See Stoddard-Quirk, 138 N.L.R.B. at 617 n.4, 620. These
complex realities have led the Board to avoid establishing a more detailed test for
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determining whether an area is mixed-use. I fear the Majority opinion puts this
Court at cross-purposes with the Board in this way.
This case requires only the simple application of our precedent in NLRB v.
Transcon Lines, 599 F.2d 719 (5th Cir. 1979).2 In that case we described “the
drivers’ room as a place for lounging, recreation and waiting, as well as a place to
receive dispatches and complete documents.” Id. at 721–22. On that record, we
upheld the Board’s finding that the room was a mixed-use area as “supported by
substantial evidence.” Id. at 721.
This ALJ found that the team centers at issue here were mixed-use areas
based on their use “as meeting and eating places for off-the clock employees taking
lunch or break time and also as offices for [Mercedes-Benz] supervisors.” This
finding was supported by the design of the team centers, which “resemble[d] an
office in some respects and a breakroom in others.” The ALJ also considered
special circumstances, finding that the evidence provided by Mercedes-Benz was
not specific to the team center where Mr. Gilbert distributed union materials.
Our job is to review this finding to see whether it is supported by substantial
evidence in the record. This record shows the team centers are used for certain
work functions, like pre-shift employee meetings. They contain a few desks and
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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computers, and work-related items like attendance calendars and bulletin boards
are fixed to the walls. But the team centers also have the trappings of a typical
breakroom, like refrigerators and microwaves for employees to use during breaks
and before shifts. The centers also contain several tables that employees use for
eating, drinking, and relaxing during lunch and break periods. Like the drivers’
room in Transcon Lines, the team centers are used for a combination of work and
non-work functions. The ALJ’s designation of the team center as a mixed-use area
was supported by substantial evidence.
IV.
Also, in my view, the Majority fails to properly credit the analysis in the
ALJ’s order. The Majority opines that the ALJ erred because “the Order does not
limit the mixed-use finding to any specific period of time.” To the contrary, the
ALJ ordered Mercedes-Benz to “[c]ease and desist from . . . [p]rohibiting
employees not on working time from distributing literature to other employees not
on working time in a mixed use area.” This effectively limits the mixed-use status
of the team centers to lunch periods, scheduled breaks, and pre-shift changes.
While I don’t agree with the Majority’s invention of “converted mixed-use areas,”
even accepting it, the ALJ’s order complies.
I respectfully dissent.
55