NLRB Continues Full Throttle Assault on Employer Solicitation and Distribution Policies

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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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