Efforts to unionize the Mercedes plant in Vance, Alabama just got easier under the National Labor Relations Act (“NLRA”). See Mercedes-Benz U.S. Int’l, Inc. v. UAW, No. 15-10291, 2016 WL 5728329 (11th Cir. Oct. 3, 2016). In the Mercedes opinion, the Eleventh Circuit reviewed a decision by the National Labor Relations Board and focused on union solicitation by employees and distribution of union literature by employees.
Generally, under the NLRA, employers like Mercedes cannot prohibit employees, who are not on working time, from soliciting other employees to join a union. Also, an employer cannot prohibit distribution of union literature by employees in non-working areas on non-working time. Nevertheless, an employer may prohibit distribution of union literature in working areas.
The Eleventh Circuit first found that the following Mercedes policy improperly restricted union solicitation:
MBUSI prohibits solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.
Mercedes, 2016 WL 5728329 at *2. The Court found that employees would reasonably understand that policy to prohibit union solicitation. Such a policy is presumed to be unlawful, but an employer like Mercedes can rebut that presumption by proving that it clearly conveyed its intent to permit solicitation — despite the language of the policy. The Eleventh Circuit found that Mercedes did not meet its burden, and enforced the NLRB’s order holding the policy unlawful.
The Eleventh Circuit gave Mercedes a minor win with regard to distribution of union literature. The Mercedes facility has 19 “Team Centers” which are adjacent to the Mercedes production line. For brief periods each day, those centers are used as break areas for employees. At all other times, the “Team Centers” are work areas. A Mercedes employee was verbally reprimanded for distributing union literature in a “Team Center” during a break period. Based upon that reprimand, the NLRB found that Mercedes was violating the NLRA in each of its 19 Team Centers.
The Eleventh Circuit modified that result. The Court found that the Team Center where the employee was reprimanded might be a non-work area during the brief break periods. Therefore, the Court remanded the case to the NLRB to determine if that Team Center could be a non-work area (called a “converted mixed-use area”) during the breaks. Yet, the Court also found that it was improper to characterize all 19 “Team Centers” as non-work areas. Instead, the NLRB only presented evidence regarding one “Team Center” and declined to present evidence on the other 18. The Eleventh Circuit ruled that it was improper to characterize the other 18 “Team Centers” as non-work areas in the absence of additional evidence.
The Mercedes opinion provides a reminder to Alabama employers to review their policies to ensure that the policies do not restrict union solicitation in violation of the NLRA. It also provides guidance on mix-used work areas, and employers should be careful in applying their non-distribution rules in those areas.