By: Howard M. Wexler

As we have previously reported–most recently here and here– the National Labor Relations Board has taken aim at employer workplace rules that it contends are unlawfully restricting employees’ Section 7 rights.

In yet another example, an NLRB Administrative Law Judge (ALJ) recently held in Mercedes-Benz U.S. International, Inc. that an employer’s solicitation and distribution rule violated the NLRA as employees “reasonably could understand [it] to prohibit all solicitation in work areas.”

The Decision

In Mercedes-Benz, the employer maintained a handbook policy which sought to limit certain non-work related activities which it believed interfered with its goal of “produc[ing] the highest quality vehicle at the most competitive price.” To this end, contained within its employee handbook is a “Solicitation and Distribution of Materials” policy which “prohibits solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.”  Furthermore, the policy provides that “Solicitation and distribution on Company property by those who are not Team Members is strictly prohibited at all times.” The employer then provided examples of prohibited solicitation and distribution of materials, including:

  • 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 distribution/posting of non-work, related materials

The ALJ noted that “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.”  In the complaint, the NLRB’s General Counsel alleged that by prohibiting the “solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas,” the reasonable employee would interpret the policy as prohibiting an off-duty employee from discussing the Union with another off-duty employee in a work area, thereby violating Section 8(a)(1). Furthermore, the NLRB asserted that the rule is unlawful because it “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 working area.”

While noting “employers may ban solicitation in working areas during working time” the ALJ held that the employer’s policy in this case violated the Act because it is unlawful for an employer to “extend such bans to working areas during nonworking time.”

The employer presented evidence as to how it actually enforced the policy, arguing that despite this policy, employees have “freely solicited [other employees] uninterrupted” and that the employees “understood the policy did not impede” there Section 7 rights. Despite having “no doubt that Respondent generally allowed employees to discuss the union in the workplace” the ALJ rejected the employer’s defense, finding that the “mere maintenance of the rule, even without enforcement, violates the Act.”

Implications For Employers

This decision highlights the continued need for employers to tread lightly given the NLRB’s ever increasing fixation with workplace rules that it contends unlawfully restrict employees’ Section 7 rights. As the case law continues to develop, employers concerned about potential legal challenges might want to revisit their handbooks and explore the possibility of revising those policies that may be problematic in light of these recent decisions.