NLRB Continues Full Throttle Assault on Employer Solicitation and Distribution Policies

May 5, 2015

This post follows, and builds upon, my November 26, 2014 post Labor Unions Have Another Reason to Be Thankful:  NLRB Serves Up Holiday Season Gift. On November 26, 2014, the National Labor Relations Board issued another union-friendly decision in connection with employer solicitation and distribution policies. The case is Mercedes-Benz U.S. International, Inc. (MUBUSI), 361 NLRB No. 120. In Mercedes-Benz, the Board—not surprisingly—echoed its rigid, “all or nothing” discrimination rule in the context of workplace solicitation, writing:

As a rule of thumb, if an employer allows its employees to discuss any non-job related subject while they work, they may discuss forming a union.

In other words, unless an employer universally prohibits workplace discussions concerning any non-job related topic—for example, sporting events, school fundraisers or perhaps even lawn care tips [I’m taking the Board’s logic to the extreme here]—the employer may not prohibit solicitation about forming a union. This rigid rule is consistent with the Board’s previous decision, in which it has taken the position that “union-related conversations” [as distinguished from the Board’s new, narrow interpretation of “solicitation”—see my November 26, 2014 post] may never be prohibited—even during working time.

Also, the Mercedes-Benz decision is the most-recent reminder that employer anti-distribution policies may violate the NLRA if enforced in so-called “mixed use” areas of an employer’s business—those areas that are used for both work/production purposes, as well as recreational purposes. Employers are encouraged to reexamine whether such “mixed use” areas exist, and if so, whether distribution policies are being enforced in such areas [or whether a policy maintained may be interpreted to apply to a “mixed use” area].

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