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

National Labor Relations Board - Administrative Judge Opinions

Jul 24, 2014

10-CA-112406 (N.L.R.B. Jul. 24, 2014)

JD(ATL)–22–14
Vance, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
MERCEDES-BENZ U.S.
INTERNATIONAL, INC. (MBUSI)
and CASES 10-CA-112406
10-CA-115917
KIRK GARNER, an Individual 10-CA-121232
and
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA
Nicholas A. Rowe, Esq. and Katherine Chahrouri, Esq.,
for the General Counsel.
Frank McRight, Esq. and Marcel DeBruge, Esq.
(Burr & Forman, 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
Section 8(a)(1) of the Act by telling employees that they could not distribute union literature in
those areas. Respondent also violated Section 8(a)(1) by maintaining a solicitation and
distribution rule which employees reasonably could understand to prohibit all solicitation in
work areas.
JD(ATL)–22–14
2
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 5
Respondent, Mercedes-Benz U.S. International, Inc. (referred to below as Respondent 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 10–10
CA–115917, and amended that charge on November 22, 2013. The charge and amended
charge were served on Respondent on October 30, 2013, and November 25, 2013, respectively.
On January 22, 2014, the Union filed a charge against Respondent in Case 10–CA–
121232. It was served on Respondent on January 27, 2014.15
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.
20
On February 21, 2014, the Acting Regional Director for Region 10 issued an order
further consolidating cases, second consolidated complaint, and notice of hearing, which
consolidated 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 25
the “Complaint.”) Respondent filed a timely answer.
On April 7, 2014, a hearing opened before me in Birmingham, 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 considered.30
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.35
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 40
of these charges. 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).45
JD(ATL)–22–14
3
Respondent admits that at all material times, it has been a corporation with an office and
place of business in Vance, Alabama, 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 preceding issuance of the 5
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 complaint paragraph 3. I
so find. Further, I conclude that Respondent 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 jurisdiction.10
Complaint paragraph 5 alleges that group leaders Joel Stewart 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. Respondent’s answer admits that these individuals 15
have been supervisors “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 witnesses, all fall within the scope of their normal job duties. 20
Respondent has not asserted that they were acting outside that scope. Accordingly, I conclude
that the admission in Respondent’s answer suffices to establish the status of these individuals as
supervisors and agents.
Complaint paragraph 4 alleges that the Union is a labor organization within the meaning 25
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, Respondent has maintained the
following rule:
30
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 solicitation and/or distribution of non-work related materials by 35
Team Members during work time or in working areas. Solicitation and distribution
on Company property by those who are not Team Members is strictly prohibited at
all times. Examples of prohibited solicitation and distribution of materials include
the following:
40
ï‚· 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.
ï‚· Distribution of handbills, notices, literature, etc., during working time or
in work areas.45
JD(ATL)–22–14
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ï‚· Personal, written, telephone, e-mail or distribution/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 5
maintained 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
enforced or otherwise contradicts the assumption that the appearance 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 complaint paragraph 8.10
Respondent has denied other allegations raised by the complaint. Those matters will be
discussed below.
Disputed Allegations15
Complaint Paragraph 6
Complaint paragraph 6 alleges that about May 19, 2013, Respondent, by Joel Stewart,
at Respondent’s facility, threatened its employees with discipline if they talked about the union 20
during work time while permitting employees to talk about other nonwork subjects.
Respondent denies this allegation.
Respondent’s employees work under the immediate supervision of “group leaders,” and
the employees assigned to a particular group leader comprise his or her team. The members of 25
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 control. Four of these 5 team 30
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 35
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 beginning of each shift. Then, 40
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.45
JD(ATL)–22–14
5
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
employees 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 5
Sunday, May 19, 2013. Respondent had mailed to employees a letter from its vice president of
human resources, Archie Craft, dated May 15, 2013. An assembly line employee, Jeremy
Kimbrell, became vexed at the letter, which he considered untruthful, and decided to talk to
employees after they assembled in the team center for their shift, but before the shift actually
began.10
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
union 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 terrified of and it wasn’t giving the Union the right to bargain for 15
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:
20
[W]hen he [Stewart] saw that I was up front talking he hollered 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 25
picked up the microphone. 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.30
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 35
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 authorization card.
Other witnesses, however, recall Kimbrell talking about the Craft letter. Employee 40
David Cooper testified, in part, as follows:
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 45
began to talk to everybody about– –I think about a letter that was mailed
to everybody by Archie Craft, and he talked for a little while, maybe a
JD(ATL)–22–14
6
minute, maybe less, and then Joel Stewart, who was our group leader, was
standing outside the Team Center, 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 5
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 10
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, 15
referring to the letter that Archie Craft, our Vice President of Human
Resources, 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 20
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 Kimbrell spoke to the employees
about Vice President Craft’s letter, and also considering Kimbrell’s testimony that he decided to 25
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
examination created the impression that he spoke to employees about the union authorization
card, going over it “line by line.”
30
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 mentioned this matter
on direct examination, Kimbrell initially answered that he forgot. However, he later gave a
different answer:35
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? 40
A. It’s not relevant.
Q. Not relevant?
A. No.
This testimony does not strike me as being particularly candid. On direct examination, 45
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
JD(ATL)–22–14
7
because two other witnesses testified 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:5
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?10
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 15
you said he was full of BS?
A. I would never have meant it as intentional disrespect, 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 20
that he tailored his testimony on direct 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 25
leader Stewart, and rely on it resolve credibility conflicts. Based on this credited testimony, I
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.
30
Although Stewart was not in the team center when Kimbrell began speaking, he was
close enough to hear Kimbrell’s amplified 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 35
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 40
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. 45
A. Yes, sir.
JD(ATL)–22–14
8
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 realized 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.”5
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 10
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 Kimbrell or threaten him with 15
discipline in connection with this incident.
Later, Stewart had a brief discussion with Kimbrell. Crediting 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 argued that an employee reasonably 20
would understand this remark to indicate that Kimbrell would not have been allowed to address
the employees had the line been in operation. However, in my view, the comment was too
cryptic to communicate this, or indeed, any message.
Kimbrell’s testimony differs markedly from Stewart’s concerning this later 25
conversation. In Kimbrell’s version, Stewart did not seek him out but rather Kimbrell initiated
the discussion:
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 tonight at the shift startup, I believe 30
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 allowed 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 35
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 talking about signing the union
authorization card. And we may have went back and forth and we just, at that 40
time, we just agreed to disagree.
For the reasons discussed above, I do not credit this testimony. Therefore, I do not find
that Stewart made the statements Kimbrell attributed to him.
45
JD(ATL)–22–14
9
In sum, based on Stewart’s credited testimony, I conclude that Respondent did not
interfere with, restrain, or coerce employees as alleged in complaint paragraph 6. Therefore, I
recommend that the Board dismiss this allegation.
Complaint Paragraph 75
Complaint paragraph 7 alleges that about May 21, 2013, Respondent, 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 discipline up to and including termination if they discussed the 10
union during work time and inside the plant while permitting employees to discuss other
nonwork subjects, and (c) Threatened employees with discipline up to and including
termination if they solicited for the union anywhere inside the plant. Respondent has denied
these allegations.
15
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.
20
The testimony of all three witnesses paint a consistent picture 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 employees 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 25
adjuster.
However, Archibald’s testimony markedly diverges from that of Burton and Vick
concerning what happened next. Archibald testified as follows:
30
Q. What did she say to the best of your recollection?
A. She said passing the union cards out is not prohibited 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 the fact that she continued to say the Company was neutral. I 35
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.
* * *40
Q. BY MR. ROWE: Were you told that you’d be disciplined or anything if you
did any of these?
MR. DEBRUGE: Judge, I object to any leading of the witness.
JUDGE LOCKE: Overruled. Please proceed. 45
THE WITNESS: Yes.
Q. BY MR. ROWE: Who said that and what did they say?
JD(ATL)–22–14
10
A. Dawn 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 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 --5
--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. 10
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.
15
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 particularly impressed
me.
20
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 further states that on cross-examination, Vick admitted “in complete 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 25
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 30
“interfering” in the following testimony:
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 35
with team members on the day shift while they were working trying to get
them to sign union cards. He denied it. I asked a question, 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.40
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.45
JD(ATL)–22–14
11
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 termination.” Obviously, both of 5
those statements cannot be correct.
In these circumstances, I conclude that the mutually corroborated testimony of Vick and
Burton likely is more reliable than the uncorroborated testimony of Archibald. Therefore, I
credit Vick and Burton.10
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.
15
Complaint Paragraph 8
Complaint paragraph 8 alleges that at all material times, Respondent 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 20
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 25
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 allegation, raised for the first time at the 30
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 effectiveness as a 35
mechanism for giving an adverse party notice 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 defense.” American Newspaper Publishers Assn. v. NLRB,
193 F.2d 782, 800 (7th Cir. 1951) (citations omitted). Here, no prior notice that 40
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 to properly
prepare a defense. Further, no excuse justifies General Counsel’s failure to raise
the issue prior to Hearing. [Footnote omitted.]
45
JD(ATL)–22–14
12
In its brief, Respondent further states that it had known before the hearing that it would
be defending against allegations that it had enforced its solicitation policy disparately.
However, it argued, “defending against an overly broad rule is much different and requires
different evidence.”
5
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)
10
Complaint paragraph 11 alleges that by “the conduct described above in paragraphs 6—
10” Respondent violated Section 8(a)(1) of the Act. The conduct described in paragraph 8 was
Respondent’s maintenance of the rule. Therefore, I conclude the complaint was sufficient to
place the Respondent on notice of the allegation litigated.
15
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.
Respondent 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 20
testimony about such policies.
Respondent also could have requested an adjournment in the hearing to investigate the
allegation and find witnesses to testify about it, but did not do so. Moreover, because the
Respondent’s answer admitted that at “relevant times, the quoted policy was part of its 25
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 Respondent on sufficient notice that
the government was alleging unlawful maintenance of the rule, thus placing the substance of 30
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 “Solicitation and Distribution of Materials” rule in full, the General 35
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.40
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).45
In assessing the legality of the rule, I will follow the framework the Board has
JD(ATL)–22–14
13
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 No. 73 (2014); Lutheran
Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
5
The Board has developed a framework for analyzing the legality 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.10
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: 15
(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).
20
The rule quoted in complaint paragraph 8 and alleged to violate 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 government 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 25
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:30
This provision can only be reasonably read as “prohibiting solicitation 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 35
employees may lawfully solicit in working areas on nonworking time and it does
not describe what is a working area. [Citing Laidlaw Transit, Inc., 315 NLRB 79
(1994).]
The language in question here closely resembles this portion of a rule found unlawful in 40
UPS Supply Chain Solutions, Inc., 357 NLRB No. 106 (2011):
Employees of the company may not solicit or distribute literature during work
time or in work areas for any purpose.
45
JD(ATL)–22–14
14
The core words, “during work time or in work areas” essentially 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 employees’ work time. 5
However, the Respondent’s rule also prohibits solicitation in work areas, and does
so without qualification. Fairly read, an employee would reasonably understand
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.]10
357 NLRB No. 104, slip op. at 2.
Similarly, in Food Services of America, Inc., 360 NLRB No. 123 (2014), the Board,
reversing the judge, found the following language to be violative:15
Solicitation discussions of a non-commercial nature. by Associates, 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.)20
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:
25
The Respondent argues that the rule permits solicitation in work areas when both
employees are on nonwork time. Perhaps 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).
30
360 NLRB No. 123, slip op. at 6. 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 post hearing brief, that the
phrasing of its rule was overly broad. However, its brief says little specifically in defense of 35
the rule. Rather, the Respondent’s brief stresses that its policy, as actually 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 40
Members understood the policy did not impede Section 7 activities, and Team
Members 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
throughout this most recent organizing campaign, Team Members have freely 45
solicited uninterrupted. (T 715:22--716:13 (Burton); T 340:10--19 (Archibald);
114:10--23 (Garner); 238:1--5, 271:3--24 (Kimbrell)).
JD(ATL)–22–14
15
* * *
[Describing American Safety Equipment Corp. v. NLRB, 643 F.2d 693 (10th Cir.
1981)] Specifically, the company established, through the testimony of its 5
industrial relations manager 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 10
(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 15
Section 7 rights, with the Board stating “[t]he record discloses that, during the
current campaign, employees openly engaged in union solicitation without
interference or discipline during their breaktimes, lunchtimes, and before and
after work.”); Phillips Industrial Components, Inc., 216 NLRB 885 (NLRB
1975) (unlawful no-solicitation rule was cured in part because there was no 20
evidence that any employee was precluded from engaging in lawful solicitation
activity).
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, 25
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 permissible despite being overbroad. The
Respondent’s argument is flawed, because mere maintenance of the rule, even 30
without enforcement, violates the Act. See Beverly Health & Rehabilitation
Services, 332 NLRB 347, 349 (2000) (“Evidence of enforcement of the rule is not
required 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 35
(6th Cir. 2002).
357 NLRB No. 106, slip op. at 2, fn. 8.
Clearly, a rule does not have to be enforced to be unlawful. However, Respondent’s 40
defense may extend beyond the argument 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
clarification reasonably understand the actual rule to be?
45
JD(ATL)–22–14
16
Arguably, the clarification of an ambiguous rule would not have to be by formal
amendment and republication in the employee handbook, but could be accomplished by memo
or perhaps even orally. The way an employer actually enforced the rule also would contribute
to how employees reasonably would understand its meaning.
5
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
comment, 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 10
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.
15
Based on the entire record, I find that the Respondent truly sought to be neutral and did
not intend its rule to be construed in a way which discouraged employees from engaging in
protected activities. However, the Respondent’s intent is not relevant. As recently as May 30,
2014, the Board, reversing the judge, found a similar rule violative. The Board’s words,
rejecting the employer’s argument for a saving construction, apply here: “Perhaps that was 20
what the Respondent meant to say, but it is not what the rule says.” Food Services of America,
Inc., above, slip op. at 6.
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 8.25
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 30
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 violation. That is, it alleges the 35
Respondent prohibited distribution of union-related literature while allowing employees to pass
out materials not related to the organizing campaign. Such a violation 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 40
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-45
distribution policy to locations where the Act gave off-duty employees the right to hand out
JD(ATL)–22–14
17
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” 5
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.
10
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 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 15
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. 20
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.”
25
Gilbert replied that he thought he was within his rights because he was passing the
flyers out to employees who were off the clock and in a nonwork area. Harris replied that they
(presumably 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 assembly line was moving.30
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
representative from the human resources department. Respondent has admitted that Roberts is
a supervisor and its agent.35
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. 40
Gilbert further testified:

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. Because it is cumbersome to
include this qualification, sometimes below it is omitted for the sake of brevity, but it nonetheless applies.
JD(ATL)–22–14
18
Q. Did you say anything in response to O.J.?
A. Yes, I told him that I didn’t know that I’d done anything 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 5
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 understand 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 10
it.
Neither Roberts nor Harris testified. Crediting Gilbert’s uncontradicted testimony, I
find that the events occurred as he described them.
15
With respect to the government’s disparate enforcement theory, 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 20
Girl Scout cookie order forms (Tr. 33-4; 144-45; 154; 173-4; 213; 361-2).
The first of these transcript citations refers to testimony by employee Michael Garner
that he saw one person, Regina Taylor, passing around an order form for cookie dough, and
another person, Twilene Jefferson, selling raffle tickets in a team center. When asked whether 25
the assembly line was moving at any time when Jefferson was selling the tickets, Garner
answered 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. 30
Further, 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 35
recalled instances when Girl Scout cookie forms and football schedules had been circulated.
Those instances took place about 4 years before the hearing, and Gilbert recalled little about
them. He also testified he recalled employees giving each other magazines to read, which
occurred about a year before his testimony.
40
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 45
Girl Scout cookie order forms circulated, but his testimony is similarly vague. Neither the
testimony cited in the General Counsel’s brief nor other parts of the record establish the facts
JD(ATL)–22–14
19
necessary to prove disparate enforcement. 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 distribution, by employees, of material unrelated to the union
campaign.
5
The General Counsel correctly notes that in certain circumstances, such knowledge may
be inferred: “Even in the absence of evidence of direct supervisor knowledge of nonwork
distributions, an ALJ can draw a reasonable inference of supervisor knowledge if the
distributions were open and routine and supervisors were in and around the area during the
period the distributions were made.” (GC Br. at 30, citing United Parcel Service, 327 NLRB 10
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 15
inference that Respondent had knowledge of these nonunion solicitations. See, in
this connection, Sunnyland Packing Company, 227 NLRB 590 (1976).
However, the present record does not establish that such instances of circulating or
distributing materials unrelated to the union campaign were open, frequent, widespread, or 20
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 enforcement of its distribution rule. Now, I turn to the General 25
Counsel’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 prohibit employees from
distributing literature in work areas to prevent the hazard to production that could be created by 30
littering 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 35
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 40
this issue, whether the team centers are mixed use areas, it should be kept in mind that the issue
is distinct 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 refrigerator, microwave oven, and 45
picnic table, used by employees during their lunch and break times. However, the team centers
also serve as offices for the group leaders and have filing cabinets, computers, and related
JD(ATL)–22–14
20
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. 5
The Respondent introduced into the record a video showing one team center in use.
The video does not change my conclusion that team centers are mixed use areas, but it certainly
is relevant to the question of whether exceptional circumstances exist.
10
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 created the impression that unique circumstances warranted
an exception to the general rule that an employer could not prohibit distribution of union 15
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 to20
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 25
makes the team centers work 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 Respondent
states, in part, as follows:
30
Here, the General Counsel apparently contends that Team Members should be
able to distribute in Team Centers literally inches from MBUSI’s logistics
aisles. . .However, the decisions in UARCO, Timken and Vapor require a contrary
conclusion. Those decisions mandate a determination that Team Centers are work
areas based on their physical proximity to the logistics aisles. MBUSI Team 35
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 logistics aisles. Any forms of delay
or potential disruption to that supply system are both costly and unacceptable. 40
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
adjacent to a production line was a work area where distribution could be 45
prohibited based on walkway’s proximity to the line).
JD(ATL)–22–14
21
The cases cited by Respondent do not address the precise issue 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 5
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 10
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
Respondent has not met that burden.
15
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 circumstances 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 20
testimony had walls 7 to 8 feet high, “all the way around.” The record does not establish that
the distribution of flyers inside these walls created any problem for forklifts and other
machinery using the logistics aisle outside.
In these circumstances, I recommend that the Board find that, by restricting employees’ 25
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 30
resources representatives Dave Foreman and Octave Roberts, “selectively and disparately by
prohibiting union solicitations and distributions, while permitting non-union solicitations and
distributions.” Respondent has denied this allegation, but has admitted that Foreman and
Roberts are its supervisors and agents.
35
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:
40
In around late August 2013, team relations specialists Octave (O.J.)
Roberts and Dave Foreman prohibited off-duty employees, 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, distribute
materials in the Atrium. (Tr. 117). Respondent, through Dawn Burton’s 45
testimony, asserts that the Atrium is a work area but “for purposes of neutrality for
the team members, the Company allowed handbilling and distribution in the
JD(ATL)–22–14
22
Atriums.” (Tr. 660-61).
Based on the uncontradicted testimony of employees Michael 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 5
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 Garner. Roberts told Garner
that he, Roberts, had talked with management, which had decided to allow distribution of union
literature in the atrium.10
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 representative. However,
Respondent did issue a September 3, 2013 internal memo stating where distribution of “non-15
work material” would be allowed. This memo included the following sentence:
It has been clarified that the atriums are non-work areas and therefore distribution
can occur there during non-work times.
20
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.25
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 post hearing brief states
“Despite the change in policy, MBUSI continues to maintain that the Atriums are work areas.”
30
Indeed, Respondent’s brief makes a point of listing the various types of employees
working in the atrium, to support its argument that the atrium is a work area. In the atrium,
Respondent’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:35
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 40
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 45
(2001)(“the occurrence of nonproduction work on part of an employer’s property does not in
itself allow the employer to declare the whole of its property to be a work area”); Santa Fe
JD(ATL)–22–14
23
Hotel & Casino, 331 NLRB 723 (2000). When Respondent’s production 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.5
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
allowed in the atrium. However, Respondent essentially remedied the violation within a couple
of hours by informing Garner that he could distribute literature in the atrium.10
Because Respondent took prompt remedial action, I have considered whether it would
effectuate the purposes and policies of the Act to recommend that the Board find that the
violation was de minimis. At first glance, it might seem that a separate remedy for this
violation would be cumulative. However, the Respondent’s continued position that the atrium 15
is a work area leaves open the possibility that it might decide to reverse its distribution policy
sometime in the future. Therefore, I believe that it would be advisable to resolve this issue
now.
Accordingly, I recommend that the Board find that Respondent violated Section 8(a)(1) 20
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 25
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 30
within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent violated Section 8(a)(1) of
the Act:
35
(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 40
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 distributing union
literature in the atrium, which is a mixed use area within the Respondent’s plant.45
4. Respondent did not violate the Act in any other manner alleged in the complaint.
JD(ATL)–22–14
24
REMEDY
To remedy its violations of the Act, the Respondent must revise its rule,
“SOLICITATION AND DISTRIBUTION OF MATERIALS,” which appears in its employee 5
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 10
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
15
ORDER
The Respondent, Mercedes-Benz U.S. International, its officers, agents, successors, and
assigns shall:
20
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 working areas.25
(b) Prohibiting employees not on working time from distributing 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.
30
(c) In any like or related manner, interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:35
(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 40
the employee handbook.
(b) Within 14 days after service by the Region, post at its facility in Vance,

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended 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.
JD(ATL)–22–14
25
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 5
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, 256 NLRB No. 9 (2010). Reasonable 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 proceedings, the 10
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since June 20,
2013. Excel Container, Inc., 325 NLRB 17 (1997).
15
(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.
20
Dated, Washington, D.C. July 24, 2014
____________________________
Keltner W. Locke
Administrative Law Judge25

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.”
JD(ATL)–22–14
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
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 conditions 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 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 our
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL revise our solicitation and distribution rule to make clear that it does not prohibit
employees who are not on working time from discussing the union or other matters relating to
wages, hours, terms and conditions of employment, with other such employees in work areas of
our plant.
WE WILL provide copies of the revised rule to all employees.
MERCEDES-BENZ U.S.
INTERNATIONAL, INC. (MBUSI)
(Employer)
Dated: ____________________ By: _________________________________________
(Representative) (Title)
JD(ATL)–22–14
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
233 Peachtree Street, N.E., Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8:00 a.m. to 4:30 p.m.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (205) 933-3013