Mercedes-Benz U.S. International, Inc. (MBUSI)

National Labor Relations Board - Board Decisions

Nov 26, 2014

361 N.L.R.B. 1018 (N.L.R.B. 2014)

1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mercedes-Benz U.S. International, Inc. (MBUSI) and
Kirk Garner and International Union, United
Automobile, Aerospace & Agricultural Imple-
ment Workers of America. Cases 10–CA–
112406, 10–CA–115917, and 10–CA–121232
November 26, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On July 24, 2014, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Charging
Party filed an answering brief, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
1 In adopting the judge’s finding that the Respondent’s team rela-
tions specialists are its agents within the meaning of Sec. 2(13) of the
Act, we do not rely on the judge’s statement that the Respondent’s
answer to the complaint admitted that the team relations specialists
were its agents, as the Respondent’s answer to the second consolidated
complaint denied the agency allegation. Instead, we find that the Re-
spondent did not specifically except to the judge’s agency finding and
therefore has waived its right to do so. See Sec. 102.46(b)(2) of the
Board’s Rules and Regulations. Even if the Respondent had properly
excepted to this finding, an agency finding would still be appropriate
because the Respondent stipulated that the team relations specialists
were agents for the purposes of conduct falling within their job descrip-
tion, which includes the conduct at issue in this case. In light of our
disposition of the agency issue, we find it unnecessary to pass on the
judge’s additional finding that the team relations specialists are statuto-
ry supervisors.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by prohibiting distribution of literature in the Atrium,
a mixed use area, we find no merit in the Respondent’s contention that
it corrected its unlawful prohibition by subsequently permitting em-
ployee distribution there. The Respondent did not take the steps re-
quired to effectively repudiate its unlawful conduct under Passavant
Memorial Area Hospital, 237 NLRB 138 (1978), and therefore the
finding of a violation is warranted.
Member Johnson agrees with his colleagues that the team center at
issue here was a mixed use area, and that the Respondent did not show
special circumstances that would justify its prohibition of distribution.
He finds it unnecessary to pass on the status of the Respondent’s team
centers that are adjacent to its production line.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our deci-
sion in Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in rele-
vant part 475 F.3d 369 (D.C. Cir. 2007).
modified below and orders that the Respondent, Mer-
cedes-Benz U.S. International, Inc. (MBUSI), Vance,
Alabama, its officers, agents, successors, and assigns
shall take the actions set in the Order as modified.
1. Insert the following as paragraphs 2(a) and (b) and
reletter the subsequent paragraphs accordingly.
“(a) Rescind the rule in its employee handbook that
prohibits solicitation of employees not on working time
by other employees not on working time in working are-
as.
“(b) Furnish employees with an insert for the current
employee handbook that (1) advises that the unlawful
provision has been rescinded, or (2) provides a lawfully
worded provision on adhesive backing that will cover the
unlawful provision; or publish and distribute to employ-
ees revised employee handbooks that (1) do not contain
the unlawful provision, or (2) provide a lawfully worded
provision.”
2. Substitute the following for paragraph 2(c).
“(c) Within 21 days after service by the Region, file
with the Regional Director for Region 10 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.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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 maintain a rule prohibiting employees
who are not on working time from discussing the union,
or other matters relating to wages, hours, terms and con-
ditions of employment, with other such employees in
work areas of our plant.
WE WILL NOT prohibit employees who are not on
working time from distributing literature to other such
361 NLRB No. 120

MERCEDES-BENZ U.S. INTERNATIONAL (MBUSI) 1019
employees in nonwork areas and mixed use areas of our
plant, including team centers and atriums.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the rule in our employee handbook
that prohibits solicitation of employees not on working
time by other employees not on working time in working
areas.
WE WILL supply you with an insert for the current em-
ployee handbook that (1) advises that the unlawful provi-
sion has been rescinded, or (2) provides a lawfully word-
ed provision on adhesive backing that will cover the un-
lawful provision; or WE WILL publish and distribute re-
vised employee handbooks that (1) do not contain the
unlawful provision, or (2) provide a lawfully worded
provision.
MERCEDES-BENZ U.S. INTERNATIONAL, INC.

The Board’s decision can be found at
www.nlrb.gov/case/10–CA–112406 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.

Nicholas A. Rowe, Esq. and Katherine Chahrouri, Esq., for the
General Counsel.
Frank McRight, Esq. and Marcel DeBruge, Esq. (Burr & For-
man, LLP), of Birmingham, Alabama, for the Respondent.
Mr. James A. Britton, of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Because I
conclude that the atriums and team centers in Respondent’s
plant are mixed use areas, I find that Respondent violated Sec-
tion 8(a)(1) of the Act by telling employees that they could not
distribute union literature in those areas. Respondent also vio-
lated Section 8(a)(1) by maintaining a solicitation and distribu-
tion rule which employees reasonably could understand to pro-
hibit all solicitation in work areas.
Procedural History
This case began on September 3, 2013, when Charging Party
Kirk Garner, an individual, filed the unfair labor practice
charge in Case 10–CA–112406 against the Respondent, Mer-
cedes-Benz U.S. International, Inc. (referred to below as Re-
spondent or MBUSI). The charge was served on Respondent
the same date.
On October 25, 2013, the Union, International Union, United
Automobile, Aerospace & Agricultural Implement Workers of
America, filed a charge against Respondent in Case 10–CA–
115917, and amended that charge on November 22, 2013. The
charge and amended charge were served on Respondent on
October 30, and November 25, 2013, respectively.
On January 22, 2014, the Union filed a charge against Re-
spondent in Case 10–CA–121232. It was served on Respond-
ent on January 27, 2014.
On December 31, 2013, the Regional Director for Region 10
of the Board issued an order consolidating cases, consolidated
complaint, and notice of nearing in Cases 10–CA–112406 and
10–CA–115917 and, Respondent filed a timely answer.
On February 21, 2014, the Acting Regional Director for Re-
gion 10 issued an order further consolidating cases, second
consolidated complaint, and notice of hearing, which consoli-
dated the most recently filed charge, in Case 10–CA–121232,
with the earlier field Cases 10–CA–112406 and 10–CA–
115917. (For brevity, I will refer to this pleading simply as the
“Complaint.”) Respondent filed a timely answer.
On April 7, 2014, a hearing opened before me in Birming-
ham, Alabama. On that day and the next 2 days, the parties
presented evidence. On April 9, 2014, the hearing closed.
Thereafter, counsel filed briefs, which I have carefully consid-
ered.
Admitted Allegations
In its answer to the complaint, Respondent admitted certain
allegations. Based on those admissions, I make the findings
described in this section of the Decision.
Respondent’s answer admitted that it received service of the
various charges, but otherwise denied the allegations raised in
paragraphs 1(a) through 1(d) of the complaint. A literal reading
of Respondent’s answer might suggest that it was denying the
filing of the charges, but that would be inconsistent with the
Respondent’s admissions that it received copies of these charg-
es. Neither at the hearing nor elsewhere in the pleadings has
Respondent denied that the Charging Parties filed the charges.
Based on all the evidence, including the charges themselves,
and applying the unrebutted presumption of administrative
regularity, I find that the Charging Parties did file the respective
charges. Therefore, I further find that the General Counsel has
proven the allegations raised by complaint paragraphs 1(a)
through 1(d).
Respondent admits that at all material times, it has been a
corporation with an office and place of business in Vance, Ala-
bama, and has been engaged in the manufacture and nonretail
sale of automobiles, as alleged in complaint paragraph 2. I so
find.
Respondent also has admitted that during the 12 months pre-
ceding issuance of the complaint, it sold and shipped from its
Vance, Alabama facility goods valued in excess of $50,000
directly to points outside the State of Alabama, as alleged in
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint paragraph 3. I so find. Further, I conclude that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2) of the Act and that it meets the
Board’s discretionary standards for the exercise of its jurisdic-
tion.
Complaint paragraph 5 alleges that group leaders Joel Stew-
art and Jason Vick, and human resources representatives Dawn
Burton, Octave Roberts, and Dave Foreman are Respondent’s
supervisors within the meaning of Section 2(11) of the Act and
its agents within the meaning of Section 2(13) of the Act. Re-
spondent’s answer admits that these individuals have been su-
pervisors “for some purposes within the meaning of Section
2(11) of the Act and denies the remaining allegations.”
The actions which the complaint alleges to be violative, and
other actions attributed to these individuals by various witness-
es, all fall within the scope of their normal job duties. Re-
spondent has not asserted that they were acting outside that
scope. Accordingly, I conclude that the admission in Respond-
ent’s answer suffices to establish the status of these individuals
as supervisors and agents.
Complaint paragraph 4 alleges that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act. The
Respondent admits this allegation and I so find.
Complaint paragraph 8 alleges that at all material times, Re-
spondent has maintained the following rule:

SOLICITATION AND DISTRIBUTION OF MATERIALS

It is the goal of MBUSI to produce the highest quality vehicle
at the most competitive cost. Activities, which interfere with
these efforts, cannot be permitted. MBUSI prohibits solicita-
tion and/or distribution of non-work related materials by
Team Members during work time or in working areas. Solici-
tation and distribution on Company property by those who are
not Team Members is strictly prohibited at all times. Exam-
ples of prohibited solicitation and distribution of materials in-
clude the following:

• Buying and selling of goods, services, materials, or
memberships. Solicitation for charitable contributions
outside of MBUSI sponsored charities and selling tickets
and chances to activities as stated above.
• Distribution of handbills, notices, literature, etc., during
working time or in work areas.
• Personal, written, telephone, e-mail or distribu-
tion/posting of non-work, related materials.

Respondent’s answer admits only that at all relevant times,
“the quoted policy was part of its handbook.” I conclude that
this response constitutes an admission that Respondent main-
tained the rule. Inclusion of the rule in its handbook amounts
to maintaining it, and no evidence suggests that Respondent
rescinded the rule, notified employees that it would not be en-
forced or otherwise contradicts the assumption that the appear-
ance of this rule in a book of rules governing employee conduct
signified that the rule was in effect. Therefore, I conclude that
the General Counsel has proven the allegations raised in com-
plaint paragraph 8.
Respondent has denied other allegations raised by the com-
plaint. Those matters will be discussed below.
Disputed Allegations
Complaint Paragraph 6
Complaint paragraph 6 alleges that about May 19, 2013, Re-
spondent, by Joel Stewart, at Respondent’s facility, threatened
its employees with discipline if they talked about the union
during work time while permitting employees to talk about
other nonwork subjects. Respondent denies this allegation.
Respondent’s employees work under the immediate supervi-
sion of “group leaders,” and the employees assigned to a par-
ticular group leader comprise his or her team. The members of
each team gather in a designated “team center” before they
begin work.
For employees who work on an assembly line, Respondent
has established 14 team centers immediately adjacent to the
lines. Respondent also has established another 5 team centers
for other employees, such as those responsible for quality con-
trol. Four of these 5 team centers are not located adjacent to
the production line but are at a distance which, depending on
the particular team center, ranges from 10 feet to 20 yards.
A team center resembles an office in some respects and a
breakroom in others. Each team center has desks and computer
equipment used by the team leader and sometimes by others,
such as human resources staff. However, each team center also
has one or more refrigerators, microwave ovens, and picnic
tables where employees eat lunch and can take their breaks.
Employees assemble in the team centers before the begin-
ning of each shift. Then, immediately when the shift begins,
the group leader conducts a meeting. This meeting provides an
opportunity for the employees to become focused on work, and
also for the group leaders to pass along any new information
the employees will need in performing their jobs. The group
leaders, who begin work a little earlier, attend a supervisors
meeting at which they receive such information.
One of the assembly line team centers is called “Trim 3.” In
May 2013, Joel Stewart was one of the group leaders who
worked at this team center. On Sunday evenings, the employ-
ees he supervised began their shift at 9:39 p.m., and on other
nights an hour later.
Complaint paragraph 6 concerns events which took place at
Trim 3 on the evening of Sunday, May 19, 2013. Respondent
had mailed to employees a letter from its vice president of hu-
man resources, Archie Craft, dated May 15, 2013. An assem-
bly line employee, Jeremy Kimbrell, became vexed at the letter,
which he considered untruthful, and decided to talk to employ-
ees after they assembled in the team center for their shift, but
before the shift actually began.
According to Kimbrell, on May 19 at 9:37 p.m.—2 minutes
before the shift started—he held up a union card and “began to
explain to the team members in the Team Center what the un-
ion card was and going over line by line what it actually meant
to sign that union card and that it wasn’t something to be terri-
fied of and it wasn’t giving the Union the right to bargain for
us, that it’s simply required to petition for a vote.”
When Kimbrell began talking to the employees, Group
Leader Stewart was not in the team center. However, at some
point Stewart returned. Kimbrell testified as follows:

[W]hen he [Stewart] saw that I was up front talking he hol-
MERCEDES-BENZ U.S. INTERNATIONAL (MBUSI) 1021
lered out my name several times, Jeremy, Jeremy. He said
stop, stop, you can’t do that Jeremy. And I responded back to
him. I said this is my time, and I’m going to talk and when it’s
your time we’ll let you have the floor. And then I continued to
do what I was doing with the card and then he ended that
meeting and come around in there and picked up the micro-
phone. And I sat down and then he got on the microphone and
said I want everybody to know this is a Right to Work state
and it will be your choice whether you have a union or not but
you don’t need to take the word of one person. And if any of
you all have any concerns, you can voice your concerns with
management.

One difference between the testimony of Kimbrell and that
of other witnesses—a difference which does not rise to the
level of a clear cut contradiction—raises some concerns about
Kimbrell’s credibility. Kimbrell’s testimony makes clear that
the May 15 letter from Respondent’s vice president Craft vexed
him and motivated him to make the short speech to employees
in the team center. Yet, when he described the content of that
speech on direct examination, his testimony, quoted above,
created the impression that his speech was about a union au-
thorization card.
Other witnesses, however, recall Kimbrell talking about the
Craft letter. Employee David Cooper testified, in part, as fol-
lows:

Q. What happened?
A. Well, we were sitting in the Team Center minutes
before our time to start work, which would have been
about 10:39, and Jeremy stood up and began to talk to eve-
rybody about—I think about a letter that was mailed to
everybody by Archie Craft, and he talked for a little while,
maybe a minute, maybe less, and then Joel Stewart, who
was our group leader, was standing outside the Team Cen-
ter, actually in the aisleway between Trim 3 and Trim 4 on
the other side of the railing, and Joel heard what Jeremy
was saying, and Joel began to talk over him and saying—
and I can’t remember his words exactly, I can’t quote them
verbatim, but to the effect of hey, wait a minute, we don’t
need to be talking about this right now, you can talk about
that later, we’ve got work to do, we’ve got to get this
meeting started. . .

Group Leader Joel Stewart also testified that Kimbrell was
talking to the employees about the Craft letter:

Q. Okay. Please continue now with what happened.
A. After I’d asked him what was going on, then I let
him finish, he held up a piece of paper and he said that he
made a statement he said, Uncle Archie, referring to the
letter that Archie Craft, our Vice President of Human Re-
sources, wrote, he said Uncle Archie overstepped his
bounds on this one. And he went on to say why he felt it
was– it wasn’t right and shouldn’t have been done and he
started giving this – to the best of my ability more or less
speaking about what, you know, they need to make as far
as decision making they needed to give the pro-union
speech, more or less, without going into detail.

Considering the testimony of Cooper and Stewart, that Kim-
brell spoke to the employees about Vice President Craft’s letter,
and also considering Kimbrell’s testimony that he decided to
address the employees after he received and read this letter, it
would seem likely that Kimbrell made the Craft letter the focus
of his brief talk. However, Kimbrell’s testimony on direct ex-
amination created the impression that he spoke to employees
about the union authorization card, going over it “line by line.”
Kimbrell’s testimony on direct examination does not indicate
that Kimbrell said anything in his speech about the letter from
Craft. On cross-examination, Kimbrell did not deny referring
to Craft as “Uncle Archie.” When asked why he had not men-
tioned this matter on direct examination, Kimbrell initially
answered that he forgot. However, he later gave a different
answer:

Q. And you just forgot about the part where you called
the Senior Vice President Uncle Archie?
A. It’s not relevant.
Q. Just slipped your mind, right?
A. It’s not relevant.
Q. Not relevant?
A. No.

This testimony does not strike me as being particularly can-
did. On direct examination, Kimbrell had testified that he had
decided to speak to the employees after he received and read
the Craft letter. Because the Craft letter had motivated him to
address the employees, and because two other witnesses testi-
fied that they heard Kimbrell talking about it in his speech, it is
difficult to believe he simply “forgot” about it.
Kimbrell’s answers to some other questions during cross-
examination also affect my conclusions about his credibility.
The following testimony is particularly significant:

Q. Okay. Did you say that Archie Crafts’ letter,
Archie, you referred to as Uncle Archie, that the letter was
“a bunch of BS”?
A. It’s possible.
Q. It’s possible?
A. It’s possible. I am a free speaker and what gets me
by, it’s just like the term Uncle Archie. You would refer to
that as disrespect but that’s a term that all of us on the line
refer to him, as Uncle Archie, so--
Q. And I guess when you stood up to call him a liar in
that letter that you meant it in a respectful way when you
referred to him as Uncle Archie and you said he was full
of BS?
A. I would never have meant it as intentional disre-
spect, just as free speaking, which is how I am. Loose for
words, whatever you want to call it.

Kimbrell’s characterization of himself as “loose for words,”
as well as my impression that he tailored his testimony on di-
rect examination to place himself in a better light, limits my
confidence in the reliability of that testimony. Therefore, to the
extent that Kimbrell’s testimony diverges from that of other
witnesses, I do not credit it.
In particular, based on my observations of the witnesses, I
credit the testimony of group leader Stewart, and rely on it
resolve credibility conflicts. Based on this credited testimony, I
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
find that, when Kimbrell addressed the employees, he used a
microphone connected to a system which amplified his voice.
This was the same system the group leader used to overcome
the noise of the assembly line, but on this particular occasion,
the line was not running.
Although Stewart was not in the team center when Kimbrell
began speaking, he was close enough to hear Kimbrell’s ampli-
fied voice. Stewart credibly testified that he heard Kimbrell say
“we need to get this meeting started a little early today.”
Returning to the team center, Stewart asked Kimbrell what
he was doing. Kimbrell replied that he had “something to talk
to these guys about. It’s before shift. It’s my time. I’m going to
talk to them.” Stewart gave the following testimony, which I
credit:

Q. Did you let him finish what he wanted to say?
A. I waited until it was time to start the meeting and at
the time to start the meeting I took over the meeting.
Q. So—and this is important I think—so is it correct
that other than asking him what he was doing you let him
continue on with his criticism of Archie Craft’s letter until
it was time for you to begin your start of shift meeting.
A. Yes, sir.

To some extent, Cooper’s testimony can be read to conflict
with Stewart’s on one point, whether Stewart allowed Kimbrell
to finish speaking. Specifically, Cooper testified that “Joel
[Stewart] immediately started the meeting, which we later real-
ized he had started the meeting early but it was all done for the
purpose of quieting Jeremy, you know, to stop what he was
saying.”
Cooper’s use of the words “we later realized” underscores
the conclusory nature of his testimony about group leader
Stewart’s motivation. On cross-examination, Cooper testified
that it was not his “understanding of the situation” that Stewart
allowed Kimbrell to finish speaking. Therefore, it is somewhat
difficult to ascertain how much of Cooper’s testimony is based
on observation and how much flows from inference.
In these circumstances, I have more confidence in Stewart’s
version. Crediting Stewart, I find that he allowed Kimbrell to
finish speaking. Based on other portions of Stewart’s credited
testimony, I find that the Respondent did not discipline Kim-
brell or threaten him with discipline in connection with this
incident.
Later, Stewart had a brief discussion with Kimbrell. Credit-
ing Stewart’s version, I find that he told Kimbrell that it would
have been “a different situation if the line had been running”
but that he did not elaborate on this statement. It might be ar-
gued that an employee reasonably would understand this re-
mark to indicate that Kimbrell would not have been allowed to
address the employees had the line been in operation. Howev-
er, in my view, the comment was too cryptic to communicate
this, or indeed, any message.
Kimbrell’s testimony differs markedly from Stewart’s con-
cerning this later conversation. In Kimbrell’s version, Stewart
did not seek him out but rather Kimbrell initiated the discus-
sion:

And he [Stewart] came down the line and I stopped him and I
said, Joel, I just want to let you know I think what you did to-
night at the shift startup, I believe you violated my rights. And
you need to be careful about that. And he told me, he said, I
would advise you to be careful because you were in violation
because the Team Center is a work area, and you’re not al-
lowed to talk about the Union in a work area. And I told him,
I said, I disagree because, first of all, I wasn’t on the clock. It
was pre shift, and we talk about stuff all the time in the Team
Centers and talk about whatever we want to and it’s a break in
a lunch area. And on top of that we’ve had people stand up
and announce taking up money for the death of relatives and
taking up money to have a group lunch or whatever. It’s all
made in the same place where I was standing when I was talk-
ing about signing the union authorization card. And we may
have went back and forth and we just, at that time, we just
agreed to disagree.

For the reasons discussed above, I do not credit this testimo-
ny. Therefore, I do not find that Stewart made the statements
Kimbrell attributed to him.
In sum, based on Stewart’s credited testimony, I conclude
that Respondent did not interfere with, restrain, or coerce em-
ployees as alleged in complaint paragraph 6. Therefore, I rec-
ommend that the Board dismiss this allegation.
Complaint Paragraph 7
Complaint paragraph 7 alleges that about May 21, 2013, Re-
spondent, by Dawn Burton and Jason Vick, at Respondent’s
facility: (a) Prohibited employees from talking about the union
during working time while permitting employees to talk about
other nonwork subjects, (b) Threatened employees with disci-
pline up to and including termination if they discussed the un-
ion during work time and inside the plant while permitting
employees to discuss other nonwork subjects, and (c) Threat-
ened employees with discipline up to and including termination
if they solicited for the union anywhere inside the plant. Re-
spondent has denied these allegations.
To support these allegations, the General Counsel presented
testimony by employee Alonzo Archibald about his meeting
with his immediate supervisor, Jason Vick and a team relations
specialist, Dawn Burton, from Respondent’s human resources
department. Only those three individuals attended the meeting,
which took place at a team center in Respondent’s plant.
The testimony of all three witnesses paint a consistent pic-
ture of how the meeting began. Burton explained the reason for
the meeting, to investigate a report that Archibald had been
riding a motorized cart (informally called a “cheese wagon”)
and soliciting employees to sign union cards while these em-
ployees were on working time. Supervisor Vick then stated
that Archibald did not drive a cheese wagon, but instead
worked on the assembly line as a panel adjuster.
However, Archibald’s testimony markedly diverges from
that of Burton and Vick concerning what happened next. Arch-
ibald testified as follows:

Q. What did she say to the best of your recollection?
A. She said passing the union cards out is not prohibit-
ed online or inside the plant. She said you can talk about
Union on your break times or at lunchtime. That’s the only
time you can talk about Union. I also discussed with her
MERCEDES-BENZ U.S. INTERNATIONAL (MBUSI) 1023
the fact that she continued to say the Company was neu-
tral. I asked her how can the Company be neutral when we
have the VP of Operations—VP of HR send out a letter
saying that his opinion on the Union.

. . . .

Q. BY MR. ROWE: Were you told that you’d be disci-
plined or anything if you did any of these?
MR. DEBRUGE: Judge, I object to any leading of the
witness.
JUDGE LOCKE: Overruled. Please proceed.
THE WITNESS: Yes.
Q. BY MR. ROWE: Who said that and what did they
say?
A. Dawn said if I’m caught talking about Union or
passing union cards out online, I’d be subject to discipli-
nary action all the way up to termination.
Q. Was anything else discussed during this meeting
with Dawn and Jason?
A. The only thing I can remember that was discussed
right now at the time were about the fact, she just kept on
complaining saying that Union—not the Union but the
Company was neutral, and I told her the Company is not
neutral. I said we’re allowed to talk about everything else
online but we can’t talk about the Union. And also she
said, well, I’ll reiterate we are neutral, you cannot talk
about the Union online. You cannot pass flyers out online,
you cannot pass union cards out online.

However, Burton specifically denied these statements which
Archibald attributed to her. According to Burton, she only told
Archibald that he could not interrupt employees while they
were at work. Vick’s testimony corroborates Burton.
Resolving this credibility conflict poses a challenge. On the
one hand, Archibald’s uncorroborated testimony is contrary to
that of two other witnesses. On the other hand, although all
three witnesses appeared credible, Archibald’s demeanor par-
ticularly impressed me.
Contrary to the General Counsel’s brief, I do not believe it
significant that Vick’s pretrial affidavit did not use the words
“interfere” or “interference.” The General Counsel’s brief fur-
ther states that on cross-examination, Vick admitted “in com-
plete contradiction to his prior testimony on direct examination,
that the word ‘interference’ was, in fact, never uttered in the
meeting with Burton and Archibald.” Such an admission, in
my view, has little effect on Vick’s credibility.
On direct examination, Vick did testify that Burton told
Archibald he could not interfere with employees while they
were working. However, he was not trying to quote Burton
verbatim but rather was describing the gist of what she said.
Vick also used the word “interfering” in the following testimo-
ny:

Q. And tell us—tell the Judge, if you would, what she
told him.
A. We sat down with Alonzo and told him what we
were told, which was basically that he was seen riding
around on the cheese wagon interfering with team mem-
bers on the day shift while they were working trying to get
them to sign union cards. He denied it. I asked a ques-
tion, was he even on a cheese wagon because his job at
that time doesn’t detail him to be on one, you know? He’s
got to be with the car—or with the line on each car. And
he said, no, he wasn’t.

Vick’s use of the qualifying phrase “which was basically”
indicates that he was not attempting to quote Burton word for
word but rather was summarizing. So the fact that he may have
used some word other than “interfering” does not suggest that
Vick’s testimony was unreliable.
On the other hand, certain portions of Archibald’s testimony
raise questions, notwithstanding his demeanor. Thus, at one
point, Archibald testified that Burton told him “passing the
union cards out is not prohibited online or inside the plant.” At
another point, he testified that “Dawn [Burton] said if I’m
caught talking about Union or passing union cards out online,
I’d be subject to disciplinary action all the way up to termina-
tion.” Obviously, both of those statements cannot be correct.
In these circumstances, I conclude that the mutually corrobo-
rated testimony of Vick and Burton likely is more reliable than
the uncorroborated testimony of Archibald. Therefore, I credit
Vick and Burton.
Because I do not credit Archibald’s testimony, I conclude
that the General Counsel has not proven the allegations raised
by complaint paragraph 7. Therefore, I recommend that the
Board dismiss this allegation.
Complaint Paragraph 8
Complaint paragraph 8 alleges that at all material times, Re-
spondent has maintained in effect the rule, set forth in full
above, under “Admitted Allegations,” titled “Solicitation and
Distribution of Materials.” Respondent has admitted that the
quoted policy was part of its handbook. Complaint paragraph
11 alleges that this rule violates Section 8(a)(1) of the Act,
which Respondent denies.
Before considering whether the language in Respondent’s
employee handbook violates Section 8(a)(1), I will address a
procedural matter. Respondent’s posthearing brief asserts, in
effect, that the General Counsel waited until the hearing began
to raise any issue concerning the solicitation policy:

The General Counsel argued in his opening statement
that MBUSI’s solicitation policy is overly broad. This al-
legation, raised for the first time at the hearing, was not
raised in the Complaint. It was flung into the case at the
last minute without explanation. The General Counsel
should not be allowed this unrestrained power.

“The propriety of a pleading is today judged by its ef-
fectiveness as a mechanism for giving an adverse party no-
tice of the claim upon which relief is sought.” Curtiss
Wright Corp. v. NLRB, 347 F.2d 61, 72 (3d Cir. 1965). A
valid complaint gives proper notice of an unfair labor
practice so that “the respondent may be put upon his de-
fense.” American Newspaper Publishers Assn. v. NLRB,
193 F.2d 782, 800 (7th Cir. 1951) (citations omitted).
Here, no prior notice that MBUSI’s solicitation policy was
being challenged as overbroad was given, and allowing the
claim to go forward robs MBUSI of its due process rights
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to properly prepare a defense. Further, no excuse justifies
General Counsel’s failure to raise the issue prior to Hear-
ing. [Footnote omitted.]

In its brief, Respondent further states that it had known be-
fore the hearing that it would be defending against allegations
that it had enforced its solicitation policy disparately. Howev-
er, it argued, “defending against an overly broad rule is much
different and requires different evidence.”
Contrary to Respondent’s argument, I conclude that the
complaint itself placed Respondent on notice of the allegation.
Before quoting the language of the rule, complaint paragraph 8
alleged “At all material times, Respondent has maintained the
following rule.” (Italics added)
Complaint paragraph 11 alleges that by “the conduct de-
scribed above in paragraphs 6—10” Respondent violated Sec-
tion 8(a)(1) of the Act. The conduct described in paragraph 8
was Respondent’s maintenance of the rule. Therefore, I con-
clude the complaint was sufficient to place the Respondent on
notice of the allegation litigated.
The Respondent concedes, in effect, that it received notice of
the allegation through the General Counsel’s opening statement
which, of course, was at the beginning of the hearing. Re-
spondent thus had time to call witnesses to explain its work
rules and policies and to testify concerning any instance when
management communicated to employees any interpretation or
modification of the solicitation and distribution policy. Indeed,
its witnesses did offer testimony about such policies.
Respondent also could have requested an adjournment in the
hearing to investigate the allegation and find witnesses to testi-
fy about it, but did not do so. Moreover, because the Respond-
ent’s answer admitted that at “relevant times, the quoted policy
was part of its handbook,” the main issue concerns the legal
import of the rule rather than its existence. Respondent thus
had sufficient time to address the issue in its brief, and did so.
Accordingly, I conclude that the complaint placed Respond-
ent on sufficient notice that the government was alleging un-
lawful maintenance of the rule, thus placing the substance of
the rule at issue. Further, considering all the circumstances, I
conclude that the Respondent suffered no prejudice.
Now, I turn to the allegations raised in complaint paragraph
8. Although that paragraph sets forth Respondent’s “Solicita-
tion and Distribution of Materials” rule in full, the General
Counsel’s theory of violation arises from a small part of it. The
alleged violation centers on these words:

MBUSI prohibits solicitation and/or distribution of non-work
related materials by Team Members during work time or in
working areas.

As a rule of thumb, if an employer allows its employees to
discuss any nonjob-related subject while they work, they may
discuss forming a union. The government asserts the words
quoted reasonably would be interpreted to prohibit an off-duty
employee from discussing the Union with another off-duty
employee in a work area, thereby violating Section 8(a)(1).
In assessing the legality of the rule, I will follow the frame-
work the Board has established for such analysis. In doing so, I
will keep in mind the determinative principle: The legality of a
rule turns on whether employees would reasonably construe its
language to prohibit protected Section 7 activity. First Transit,
Inc., 360 NLRB 644 (2014); Lutheran Heritage Village-
Livonia, 343 NLRB 646, 647 (2004).
The Board has developed a framework for analyzing the le-
gality of rules restricting solicitation or distribution and, under
this framework, the analysis proceeds step by step. The Board
first considers whether the rule explicitly restricts activities
protected by the Act. Such an explicit restriction interferes
with the exercise of statutory rights and violates Section
8(a)(1), so the analysis need proceed no further.
If the rule in question harbors no explicit restriction, it still
may imply one which chills employees in the exercise of their
rights. Therefore, a conclusion that the rule does not include an
explicit restriction sends the trier-of-fact to the next step of the
analysis. Even absent an explicit restriction, a rule may violate
Section 8(a)(1) in any of the following 3 circumstances: (1)
employees reasonably would construe the rule’s language to
prohibit Section 7 activity; (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. Lutheran Heritage
Village—Livonia, above; Lafayette Park Hotel, 326 NLRB 824
(1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999).
The rule quoted in complaint paragraph 8 and alleged to vio-
late Section 8(a)(1) does not include any explicit restriction on
the exercise of Section 7 rights. Therefore, I must determine
whether it falls into any of the three categories discussed above.
As I understand the General Counsel’s argument, the govern-
ment is not contending either that Respondent had promulgated
the rule in response to union activity or that it has been applied
to restrict the exercise of Section 7 rights.
Rather, the General Counsel argues that the rule violates the
Act because employees reasonably would construe its language
to prohibit activity which Section 7 protects. Thus, the General
Counsel’s brief states, in part:

This provision can only be reasonably read as “prohibiting so-
licitation by team members in working areas.” As written, this
policy prohibits any solicitation at any time in working areas,
regardless of whether the employees are on working time or
not. Respondent’s rule is ambiguous and does not clearly
convey that employees may lawfully solicit in working areas
on nonworking time and it does not describe what is a work-
ing area. [Citing Laidlaw Transit, Inc., 315 NLRB 79
(1994).]

The language in question here closely resembles this portion
of a rule found unlawful in UPS Supply Chain Solutions, Inc.,
357 NLRB 1295 (2011):

Employees of the company may not solicit or distribute litera-
ture during work time or in work areas for any purpose.

The core words, “during work time or in work areas” essen-
tially are identical to those in Respondent’s rule, “during work
time or in working areas.” Although the judge in UPS Supply
Chain Solutions concluded that the rule did not violate the Act,
the Board reversed. It stated:

[T]he judge focused solely on the restrictions placed on em-
ployees’ work time. However, the Respondent’s rule also
prohibits solicitation in work areas, and does so without quali-
MERCEDES-BENZ U.S. INTERNATIONAL (MBUSI) 1025
fication. Fairly read, an employee would reasonably under-
stand the rule to ban solicitation in work areas even during
nonwork time. The rule is therefore impermissibly overbroad
and violates Section 8(a)(1). [Footnote omitted.]

357 NLRB No. 104, slip op. at 2 (not reported in Board vol-
umes).

Similarly, in Food Services of America, Inc., 360 NLRB
1012 (2014), the Board, reversing the judge, found the follow-
ing language to be violative:

Solicitation discussions of a non-commercial nature. by Asso-
ciates, are limited to the non-working hours of the solicitor as
well as the person being solicited and in non-work areas.
(Working hours do not include meal breaks or designated
break periods.)

The Board, citing UPS Supply Chain Solutions, above, stated
that, absent special circumstances not present, employers may
ban solicitation in working areas during working time but may
not extend such bans to working areas during nonworking time.
The Board further stated:

The Respondent argues that the rule permits solicitation in
work areas when both employees are on nonwork time. Per-
haps that was what the Respondent meant to say, but it is not
what the rule says. Accordingly, by maintaining the rule, the
Respondent violated Section 8(a)(1).

360 NLRB 1012, 1017. Based on these precedents, I conclude
that the rule under consideration here violates Section 8(a)(1).
Respondent did not concede, either at the hearing or in its
posthearing brief, that the phrasing of its rule was overly broad.
However, its brief says little specifically in defense of the rule.
Rather, the Respondent’s brief stresses that its policy, as actual-
ly applied in the plant, was lawful:

Even assuming arguendo the claim is proper and that MBUSI
promulgated and overly broad solicitation policy, MBUSI
permitted lawful solicitations, Team Members understood the
policy did not impede Section 7 activities, and Team Mem-
bers routinely solicited without interference. Our Way Inc.,
268 NLRB 394, 395 (1983) (if invalid rule, employer can
show that it applied the rule in such a way as to permit lawful
solicitation). In fact, since MBUSI’s inception, and through-
out this most recent organizing campaign, Team Members
have freely solicited uninterrupted. (T 715:22–716:13 (Bur-
ton); T 340:10–19 (Archibald); 114:10–23 (Garner); 238:1–5,
271:3–24 (Kimbrell)).

. . . .

[Describing American Safety Equipment Corp. v. NLRB, 643
F.2d 693 (10th Cir. 1981)] Specifically, the company estab-
lished, through the testimony of its industrial relations manag-
er and three employees, that it applied its work rule to permit
lawful solicitation; the rule’s application was communicated
to four employees, and employees openly solicited without
discipline. Id. General Counsel proffered no evidence to the
contrary. Id. Under those facts, the court found no violation
of the Act. Id.; NLRB v. United Techs. Corps., 706 F.2d 1254
(2d Cir. 1983) (company overcome presumption of invalid
rule because the record showed employees understood the ban
on solicitation during “work hours” to mean “work time.”);
Essex International, Inc., 211 NLRB 749, 750 (NLRB
1974)(facially unlawful rule found lawful in part because the
record evidence made clear that employees did not understand
the rule to inhibit Section 7 rights, with the Board stating
“[t]he record discloses that, during the current campaign, em-
ployees openly engaged in union solicitation without interfer-
ence or discipline during their breaktimes, lunchtimes, and be-
fore and after work.”); Phillips Industrial Components, Inc.,
216 NLRB 885 (NLRB 1975) (unlawful no-solicitation rule
was cured in part because there was no evidence that any em-
ployee was precluded from engaging in lawful solicitation ac-
tivity).

From the record, I have no doubt that Respondent generally
allowed employees to discuss the union in the workplace.
However, the respondent in UPS Supply Chain Solutions,
above, raised a similar argument, which the Board rejected:

In the alternative, the Respondent argues that because
it does not enforce the no-solicitation rule, the rule is per-
missible despite being overbroad. The Respondent’s ar-
gument is flawed, because mere maintenance of the rule,
even without enforcement, violates the Act. See Beverly
Health & Rehabilitation Services, 332 NLRB 347, 349
(2000) (“Evidence of enforcement of the rule is not re-
quired to find a violation of the Act. . .mere maintenance
of an ambiguous or overly broad rule tends to inhibit or
threaten employees.”) (citations omitted), enfd. sub nom
Beverly Health & Rehabilitation Services v. NLRB, 297
F.3d 468 (6th Cir. 2002).

357 NLRB 1295, 1296, fn. 8.

Clearly, a rule does not have to be enforced to be unlawful.
However, Respondent’s defense may extend beyond the argu-
ment that it did not enforce the rule in its handbook. In certain
circumstances, an employer can cure an ambiguity in a work
rule by communicating further with employees. In that event,
what would an employee aware of both the rule and the clarifi-
cation reasonably understand the actual rule to be?
Arguably, the clarification of an ambiguous rule would not
have to be by formal amendment and republication in the em-
ployee handbook, but could be accomplished by memo or per-
haps even orally. The way an employer actually enforced the
rule also would contribute to how employees reasonably would
understand its meaning.
However, written words, particularly those in a formal
statement of rules, such as the employee handbook, likely will
weigh more heavily in an employee’s mind than an oral com-
ment, particularly when the comment does not specifically state
that “the rule in the employee handbook is hereby modified.”
Indeed, if any disagreement should arise concerning a rule’s
specific requirements, both employees and their supervisors
naturally would turn to the handbook for a definitive answer.
Moreover, as long as the rule is “on the books,” it continues
to have potential to chill employees’ exercise of their Section 7
rights. Its existence requires a remedy.
Based on the entire record, I find that the Respondent truly
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sought to be neutral and did not intend its rule to be construed
in a way which discouraged employees from engaging in pro-
tected activities. However, the Respondent’s intent is not rele-
vant. As recently as May 30, 2014, the Board, reversing the
judge, found a similar rule violative. The Board’s words, re-
jecting the employer’s argument for a saving construction, ap-
ply here: “Perhaps that was what the Respondent meant to say,
but it is not what the rule says.” Food Services of America,
Inc., above, 1017.
Therefore, I recommend that the Board find that Respondent
violated Section 8(a)(1) of the Act by maintaining the rule set
forth in complaint paragraph 8.
Complaint Paragraph 9
Complaint paragraph 9 alleges that about “June 20, 2013,
Respondent, by Octave Roberts, enforced the rule described
above in paragraph 8 selectively and disparately by prohibiting
union solicitation and distribution in the Team Center, an area
used both as a non-work area and a work area, while permitting
non-union solicitations and distributions.” Respondent denies
this allegation.
This language clearly alleges a disparate enforcement viola-
tion. That is, it alleges the Respondent prohibited distribution
of union-related literature while allowing employees to pass out
materials not related to the organizing campaign. Such a viola-
tion does not depend on whether the team centers are work
areas or nonwork areas but rather would involve, for example, a
supervisor turning a blind eye to someone passing out handbills
advertising a little theater production of “Arsenic and Old
Lace” while being eagle eyed in preventing the distribution of
union flyers.
However, complaint paragraph 9 also describes a team center
as being “an area used both as a non-work area and a work
area.” Thus, at least by implication, this complaint paragraph
alleges another theory of violation, that Respondent unlawfully
applied its no-distribution policy to locations where the Act
gave off-duty employees the right to hand out literature to other
off-duty employees.1
The General Counsel included this second theory in his
opening argument and in his brief and the Respondent’s brief
addresses it as well. In reviewing the briefs and the record, I do
not discern that Respondent objected to the General Counsel
pursuing this “mixed use area” theory. Although Respondent
objected to the General Counsel’s argument that the employee
handbook’s distribution/solicitation policy was unlawful on its
face—a matter discussed above in connection with complaint
paragraph 8—I do not understand this objection to extend to
complaint paragraph 9.
Accordingly, I will treat complaint paragraph 9 as alleging
two separate theories, each of which has been fully litigated.
The first theory involves the alleged disparate application of
Respondent’s distribution policy to those handing out union
1 An employer lawfully may forbid employees who are on working
time from distributing literature because “working time is for work.”
Likewise, it lawfully can prohibit employees who are off the clock from
handing literature to other employees who are on working time. Be-
cause it is cumbersome to include this qualification, sometimes below it
is omitted for the sake of brevity, but it nonetheless applies.
flyers to other employees while not applying it to those passing
out reading materials not related to the Union. The second
theory concerns whether the restrictions on distribution in the
team centers were unlawful because the team centers were,
allegedly, mixed use areas.
The government relies on the testimony of assembly line
worker David Gilbert that on June 20, 2013, in his team center
at the Respondent’s plant, he passed out a prounion flyer to
other employees. Neither he nor the recipients of the flyer were
on working time.
When Gilbert went to his locker, his group leader, Jacqueline
Harris, approached him. According to Gilbert, Harris told him
“not that she cared, but I wasn’t supposed to pass those out.”
Gilbert replied that he thought he was within his rights be-
cause he was passing the flyers out to employees who were off
the clock and in a nonwork area. Harris replied that they (pre-
sumably meaning the supervisors) had been told that employees
could pass out flyers before shift started on Sunday and during
breaks and lunch thereafter, but not during the time the assem-
bly line was moving.
Later, about a half hour after the shift started, Gilbert’s team
leader called him off the line and told him to go to the team
center. There, Gilbert spoke with O. J. Roberts, a representa-
tive from the human resources department. Respondent has
admitted that Roberts is a supervisor and its agent.
According to Gilbert, Roberts told him that he was not in any
trouble and had done nothing wrong. Roberts said that he just
wanted to be sure they had a clear understanding that Gilbert
was not supposed to pass out any literature during the time the
line was moving, that he could pass things out before shift
started on Sunday and during breaks and lunch after that. Gil-
bert further testified:

Q. Did you say anything in response to O.J.?
A. Yes, I told him that I didn’t know that I’d done any-
thing wrong, that I wanted to make sure that we had a
clear understanding that, that, I asked him if that included
football schedules and birthday cards and Christmas gifts
and just things in general. And he said that if I’d asked
him a month ago that he wouldn’t have known there was
going to be a problem.
Q. And did he say anything back to you, to the best of
your recollection?
A. He, well he told me—I asked him about the cards,
I’m sorry. He said that it was all new. He didn’t quite un-
derstand and I said that I didn’t think it was all that new
and if I knew it was a problem that I wouldn’t have done
it.

Neither Roberts nor Harris testified. Crediting Gilbert’s un-
contradicted testimony, I find that the events occurred as he
described them.
With respect to the government’s disparate enforcement the-
ory, the General Counsel’s brief states as follows:

Multiple employees testified to observing other employees
distribute non-union, non-work items in the Team Centers,
including football schedules, magazines, and Girl Scout cook-
ie order forms (Tr. 33-4; 144–45; 154; 173-4; 213; 361-2).

MERCEDES-BENZ U.S. INTERNATIONAL (MBUSI) 1027
The first of these transcript citations refers to testimony by
employee Michael Garner that he saw one person, Regina Tay-
lor, passing around an order form for cookie dough, and anoth-
er person, Twilene Jefferson, selling raffle tickets in a team
center. When asked whether the assembly line was moving at
any time when Jefferson was selling the tickets, Garner an-
swered that he could not remember.
Neither Taylor nor Jefferson testified. The record does not
establish whether or not any supervisor or manager either saw
them engaged in this activity or spoke to them about it. Fur-
ther, the record does not reveal whether the assembly line was
running at the time, a necessary fact because Respondent only
prohibited distribution of literature in the team centers when the
assembly line was in operation.
The second set of transcript citations refers to the testimony
of David Gilbert, who recalled instances when Girl Scout cook-
ie forms and football schedules had been circulated. Those
instances took place about 4 years before the hearing, and Gil-
bert recalled little about them. He also testified he recalled
employees giving each other magazines to read, which occurred
about a year before his testimony.
Gilbert’s testimony was quite general. He did not know
whether management had seen these incidents. His testimony
also does not shed light on whether anyone from management
talked to the individuals involved.
The last transcript citations refer to the testimony of Alonzo
Archibald that he had seen Girl Scout cookie order forms circu-
lated, but his testimony is similarly vague. Neither the testimo-
ny cited in the General Counsel’s brief nor other parts of the
record establish the facts necessary to prove disparate enforce-
ment. Credible evidence fails to establish that Respondent
knew about any of the incidents. Similarly, credible evidence
does not establish that Respondent knew about any other distri-
bution, by employees, of material unrelated to the union cam-
paign.
The General Counsel correctly notes that in certain circum-
stances, such knowledge may be inferred: “Even in the absence
of evidence of direct supervisor knowledge of nonwork distri-
butions, an ALJ can draw a reasonable inference of supervisor
knowledge if the distributions were open and routine and su-
pervisors were in and around the area during the period the
distributions were made.” (GC Br. at 30, citing United Parcel
Service, 327 NLRB 317 (1998).) Thus, in The Timken Co., 236
NLRB 757 (1978), the Board, reversing its judge, stated:

Contrary to the Administrative Law Judge, we find that the
open, frequent, and widespread solicitations described by the
employees justifies drawing an inference that Respondent had
knowledge of these nonunion solicitations. See, in this con-
nection, Sunnyland Packing Company, 227 NLRB 590
(1976).

However, the present record does not establish that such in-
stances of circulating or distributing materials unrelated to the
union campaign were open, frequent, widespread, or routine.
Therefore, I conclude it would not be appropriate to infer that
management knew about these actions.
In view of the generality of the information, I conclude that
the government has not proven disparate or selective enforce-
ment of its distribution rule. Now, I turn to the General Coun-
sel’s second theory, that the rule violated the act when applied
to the team centers because they were mixed use areas.
The Board has long held that an employer may lawfully pro-
hibit employees from distributing literature in work areas to
prevent the hazard to production that could be created by litter-
ing the premises. Stoddard Quirk Mfg. Co., 138 NLRB 615
(1962). However, the Board has also held, with court approval,
that this rule does not apply to a mixed use area. Transcon
Lines, 235 NLRB 1163, 1165 (1978), affd. in pertinent part 599
F.2d 719 (5th Cir. 1979) (employer failed to meet burden of
establishing that distribution, which took place in area used for
recreation as well as work, occurred in a work area or during
worktime). United Parcel Service, 327 NLRB 295 (1998).
The General Counsel asserts that the team centers are mixed
use areas. If so, the Respondent violated the Act by prohibiting
the distribution of literature in them. With equal vigor, the
Respondent contends that the team centers are only production
areas. In considering this issue, whether the team centers are
mixed use areas, it should be kept in mind that the issue is dis-
tinct from another question, whether unique circumstances
warrant granting a special exception to the rule that mixed use
areas are to be treated in the same way as nonwork areas.
As described above, each of the team centers has a refrigera-
tor, microwave oven, and picnic table, used by employees dur-
ing their lunch and break times. However, the team centers
also serve as offices for the group leaders and have filing cabi-
nets, computers, and related equipment. In addition to the
group leaders, members of management, and human resources
representatives use the team centers when they come to the
production area to confer with employees. The 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 Respondent’s supervisors clearly weighs in favor of finding
the centers to be mixed use areas.
The Respondent introduced into the record a video showing
one team center in use. The video does not change my conclu-
sion that team centers are mixed use areas, but it certainly is
relevant to the question of whether exceptional circumstances
exist.
The team center depicted in the 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 picnic table
for workers to use on breaks and at lunch. At the least, it creat-
ed the impression that unique circumstances warranted an ex-
ception to the general rule that an employer could not prohibit
distribution of union literature in a mixed use area.
However, Respondent’s plant has at least 19 team centers,
five of which are not on the production line. At least one of
them is 20 yards away. The team centers also vary in design.
Some, for example, have walls. Because of these variations, it
would not be appropriate to generalize from the video.
Respondent’s brief does not dispute that some of the team
centers are not adjacent to the assembly line but it notes that all
of the team centers are close to “logistics aisles” paths used by
forklifts and other equipment. To support its argument that
proximity to the logistics aisles makes the team centers work
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
areas, Respondent relies on four cases, Washington Fruit &
Produce Co., 343 NLRB 1215 (2004); UARCO, Inc., 286
NLRB 55 (1987); Vapor Corp., 242 NLRB 776 (1979); and
The Timken Co., 236 NLRB 757 (1978). In its brief, the Re-
spondent states, in part, as follows:

Here, the General Counsel apparently contends that Team
Members should be able to distribute in Team Centers literal-
ly inches from MBUSI’s logistics aisles. . .However, the deci-
sions in UARCO, Timken and Vapor require a contrary con-
clusion. Those decisions mandate a determination that Team
Centers are work areas based on their physical proximity to
the logistics aisles. MBUSI Team Members build vehicles 24
hours a day, 7 days a week, as part of highly organized, and
very complicated, Just-In-Time manufacturing system. The
system depends on a continuous and accurate flow of parts
and supplies transported by the forklifts and tuggers on the lo-
gistics aisles. Any forms of delay or potential disruption to
that supply system are both costly and unacceptable. Further,
the Team Centers physical proximity - a matter of inches - to
logistics aisles which are critical to MBUSI’s plant operations
mandates a finding that the Team Centers are work areas. See
UARCO, Timken, Vapor, supra.; see also, Washington Fruit
& Produce Co., 343 NLRB 1215, 1233 (2004) (walkway ad-
jacent to a production line was a work area where distribution
could be prohibited based on walkway’s proximity to the
line).

The cases cited by Respondent do not address the precise is-
sue to be decided here and do not convince me that the team
centers should be classified as work areas rather than mixed use
areas. I conclude that the team centers, which employees use to
eat lunch while on nonworking time, properly are classified as
mixed use areas. See Superior Emerald Park Landfill, LLC,
340 NLRB 449, 456 (2003) (“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.”);
United Parcel Service, above, citing Rockingham Sleepwear,
188 NLRB 698, 701 (1971).
Respondent’s arguments remain relevant to the issue of
whether special circumstances exist warranting an exception to
the rule that employees not on working time have the right to
distribute union literature to other such employees in a mixed
use area. Respondent bears the burden of proving the existence
of such special circumstances. Here, I conclude that Respond-
ent has not met that burden.
More exactly, I conclude that Respondent has not shown that
special circumstances existed at the team center where Gilbert
distributed the union-related materials, which is the only team
center relevant to the allegations in complaint paragraph 9. I
need not, and do not, decide whether such special circumstanc-
es existed at any other team center, such as the one depicted in
the video. Unlike that one, the team center used by Gilbert and
described in his testimony had walls 7 to 8 feet high, “all the
way around.” The record does not establish that the distribu-
tion of flyers inside these walls created any problem for fork-
lifts and other machinery using the logistics aisle outside.
In these circumstances, I recommend that the Board find
that, by restricting employees’ right to distribute literature in a
mixed use area, Respondent violated Section 8(a)(1) of the Act.
Complaint Paragraph 10
Complaint paragraph 10 alleges that about August 30, 2013,
the Respondent, by human resources representatives Dave
Foreman and Octave Roberts, “selectively and disparately by
prohibiting union solicitations and distributions, while permit-
ting non-union solicitations and distributions.” Respondent has
denied this allegation, but has admitted that Foreman and Rob-
erts are its supervisors and agents.
This complaint allegation concerns events in a room called
the atrium, which is roughly 60 by 100 feet and mostly open
space. When they enter and leave the plant each workday,
employees go through it. On the walls, bulletin boards display
notices about work. The General Counsel’s brief summarizes
the relevant events as follows:

In around late August 2013, team relations specialists Octave
(O.J.) Roberts and Dave Foreman prohibited off-duty em-
ployees, including Kirk Garner, from distributing pro-union
flyers in the Atrium. (Tr. 35–6). Roberts approached Garner
several hours later and told Garner that he could, in fact, dis-
tribute materials in the Atrium. (Tr. 117). Respondent,
through Dawn Burton’s testimony, asserts that the Atrium is a
work area but “for purposes of neutrality for the team mem-
bers, the Company allowed handbilling and distribution in the
Atriums.” (Tr. 660-61).

Based on the uncontradicted testimony of employees Mi-
chael Kirk Garner and David Gilbert, which I credit, I find that
sometime in late August 2013 they were passing out union
literature in the atrium. Human resources representatives O. J.
Roberts and Dave Foreman approached them. Roberts told
them that they could not pass out literature in the atrium.
A couple of hours later, Roberts and Foreman met with Gar-
ner. Roberts told Garner that he, Roberts, had talked with man-
agement, which had decided to allow distribution of union lit-
erature in the atrium.
The record does not establish that Respondent ever convened
the employees and told them that it would allow distribution in
the atrium. Indeed, employee Gilbert received this information
from Garner, not from a supervisor or human resources repre-
sentative. However, Respondent did issue a September 3, 2013
internal memo stating where distribution of “non-work materi-
al” would be allowed. This memo included the following sen-
tence:

It has been clarified that the atriums are non-work areas and
therefore distribution can occur there during non-work times.

The record establishes, and I find, that since about August
30, 2013, Respondent’s policy has been to allow distribution of
union literature in the atrium. The government does not allege
that Respondent prohibited the distribution of such literature in
the atrium at any time since August 30, 2013, and no evidence
suggests that the change in policy was anything but genuine.
Therefore, it is somewhat difficult to understand what might
be called Respondent’s “official” position, that the atrium is a
work area. Thus, Respondent’s posthearing brief states “De-
spite the change in policy, MBUSI continues to maintain that
MERCEDES-BENZ U.S. INTERNATIONAL (MBUSI) 1029
the Atriums are work areas.”
Indeed, Respondent’s brief makes a point of listing the vari-
ous types of employees working in the atrium, to support its
argument that the atrium is a work area. In the atrium, Re-
spondent’s employees staff a store which sells merchandise to
both visitors and employees. Security officers work out of a
“kiosk” in the atrium. At a desk in the atrium, an employee
helps other employees sign up for vehicle leases. Respondent’s
brief further states:

Besides serving as a means of egress and ingress for
Team Members, four separate classifications of MBUSI
employees are regularly assigned to work in the Atrium -
medical and safety employees, vehicle leasing employees,
retail employees, and security employees. . . Medical and
safety employees have a separate office in the Atrium and
resolve Team Member medical needs that arise in the
Plant. [Transcript citations omitted.]

Notwithstanding Respondent’s arguments, I conclude that
the atrium is, at most, a mixed use area. See, e.g., New York
New York Hotel & Casino, 334 NLRB 772, 773-774 (2001)
(“the occurrence of nonproduction work on part of an employ-
er’s property does not in itself allow the employer to declare the
whole of its property to be a work area”); Santa Fe Hotel &
Casino, 331 NLRB 723 (2000). When Respondent’s produc-
tion employees traverse the atrium for egress or ingress, they
are not on working time, either having clocked out or not yet
clocked in. The record does not indicate whether employees
who visit the medical office, lease a vehicle or buy merchandise
in the retail store are “on the clock,” but I will not assume so
without evidence.
Because I conclude that the atrium is, at most, a mixed use
area, I further conclude that Respondent violated the Act when
Roberts told Garner and Gilbert that distribution was not al-
lowed in the atrium. However, Respondent essentially reme-
died the violation within a couple of hours by informing Garner
that he could distribute literature in the atrium.
Because Respondent took prompt remedial action, I have
considered whether it would effectuate the purposes and poli-
cies of the Act to recommend that the Board find that the viola-
tion was de minimis. At first glance, it might seem that a sepa-
rate remedy for this violation would be cumulative. However,
the Respondent’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. Therefore, I be-
lieve that it would be advisable to resolve this issue now.
Accordingly, I recommend that the Board find that Respond-
ent violated Section 8(a)(1) of the Act by the conduct alleged in
complaint paragraph 10.
CONCLUSIONS OF LAW
1. At all material times, the Respondent, Mercedes-Benz
U.S. International, has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. At all material times, the Union, International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America, has been and is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent violat-
ed Section 8(a)(1) of the Act:
(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 dis-
tributing union literature in one of Respondent’s team centers,
which are mixed use areas within the Respondent’s plant.
(c) Prohibiting employees not on working time from distrib-
uting union literature in the atrium, which is a mixed use area
within the Respondent’s plant.
4. Respondent did not violate the Act in any other manner al-
leged in the complaint.
REMEDY
To remedy its violations of the Act, the Respondent must re-
vise its rule, “SOLICITATION AND DISTRIBUTION OF
MATERIALS,” which appears in its employee handbook to
make clear that it does not prohibit an employee not on working
time from soliciting another employee not on working time in a
work area. The Respondent must distribute the revised rule to
all current employees who received an employee handbook.
The Respondent also must post the Notice to Employees
which is attached to this decision as Appendix A.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended2
ORDER
The Respondent, Mercedes-Benz U.S. International, Vance,
Alabama, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Maintaining a work rule which employees reasonably
could understand to prohibit solicitation of employees not on
working time by other employees not on working time in work-
ing areas.
(b) Prohibiting employees not on working time from distrib-
uting literature to other employees not on working time in a
mixed use area. In the Respondent’s plant, mixed use areas
include its atriums and its team centers.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, revise the
employee handbook rule titled SOLICITATION AND
DISTRIBUTION OF MATERIALS to clarify that it does not
prohibit employees not on working time from soliciting other
employees not on working time in work areas, and provide
copies of this revision to all employees who received the em-
ployee handbook.
2 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.

1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Within 14 days after service by the Region, post at its fa-
cility in Vance, Alabama, copies of the Notice to Employees
attached hereto as “Appendix A.”3 Copies of the notice, on
forms provided by the Regional Director for Region 10, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
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. J. Picini Flooring, 356 NLRB 11(2010). Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
3 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
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 June 20, 2013. Excel Container,
Inc., 325 NLRB 17 (1997).
(c) Notify the Regional Director for Region 10, in writing,
within 21 days from the date of the administrative law judge’s
Order, what steps have been taken to comply with this Order.
Dated, Washington, D.C. July 24, 2014

The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/10–CA–112406 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.