Mercedes-Benz U.S. Int'l, Inc. v. Int'l Union

• Decision Date: 03 October 2016
• Docket Number: No. 15-10291,15-10291
• Citation: 838 F.3d 1128
• Parties: Mercedes–Benz U.S. International, Inc., Petitioner–Cross Respondent, v. International Union, UAW, Intervenor, National Labor Relations Board, Respondent–Cross Petitioner
• Court: U.S. Court of Appeals — Eleventh Circuit

838 F.3d 1128

Mercedes–Benz U.S. International, Inc., Petitioner–Cross Respondent,

v.International Union, UAW, Intervenor,National Labor Relations Board, Respondent–Cross Petitioner

No. 15-10291

United States Court of Appeals, Eleventh Circuit.

Date Filed: October 3, 2016

Marcel L. Debruge, Frank McRight, Matthew Taylor Scully, Burr & Forman, LLP, Birmingham, AL, Petitioner–Cross Respondent.

James A. Britton, International Union, UAW, Detroit, MI, for Intervenor.

Linda Dreeben, Jill A. Griffin, Richard F. Griffin, Jr., Milakshmi V. Rajapakse, National Labor Relations Board Appellate Litigation, Washington, DC, Kirk Garner, Duncanville, AL, Claude Harrell, Jr., Nicholas A. Rowe, Nancy Wilson, Atlanta, GA, Scott Thompson, Winston Salem, NC, for Respondent–Cross Petitioner.

Before MARTIN, ANDERSON and BLACK, Circuit Judges.

BLACK

, Circuit Judge:

Mercedes–Benz U.S. International, Inc. (MBUSI) petitions this Court to review the order of a three-member panel of the National Labor Relations Board (NLRB or the Board) modifying and adopting as modified the recommended order of the administrative law judge (ALJ). The Board found that MBUSI violated the National Labor Relations Act, 29 U.S.C. § 151 et seq.

(the Act), in three ways: (1) maintaining an overly broad solicitation and distribution rule that employees would reasonably understand to prohibit solicitation in work areas by employees not on working time of other employees not on working time; (2) prohibiting an employee not on working time from distributing union literature in one of MBUSI's team centers, which are mixed-use areas; and (3) prohibiting employees not on working time from distributing union literature in the MBUSI atrium, which is a mixed-use area. Mercedes–Benz U.S. Int'l, Inc. , 361 N.L.R.B. No. 120 (Nov. 26, 2014). On petition for review, MBUSI challenges each of these findings, and the General Counsel of the NLRB cross-petitions this Court to enforce the Board's order. The Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), intervenes in support of the order. After review, we enforce in part and remand in part with instructions.

I. BACKGROUND

First enacted in 1935, “a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management.” Am. Ship Bldg. Co. v. NLRB , 380 U.S. 300, 316, 85 S.Ct. 955, 966, 13 L.Ed.2d 855 (1965)

. The Act “sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers.” Id . Section 7 of the Act grants employees affirmative rights such as the right to self-organize, to bargain collectively, “and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” National Labor Relations (Wagner–Connery Labor Relations) Act § 7, 29 U.S.C. § 157. Section 8 of the Act defends the Section 7 rights by prohibiting an employer's “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7].” Id. § 8, 29 U.S.C. § 158(a)(1)

.

The Act also created and empowered the modern NLRB. See 29 U.S.C. §§ 153

–156. Within the NLRB, the Act created the office of the General Counsel, which has final authority regarding investigations into unfair labor practices and prosecution of complaints before the Board. Id. § 153(d). The Supreme Court has described the Board's role in interpreting and applying the Act as follows:

The Wagner Act did not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice. On the contrary that Act left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms. Thus a rigid scheme of remedies is avoided and administrative flexibility within appropriate statutory limitations obtained to accomplish the dominant purpose of the legislation.

Republic Aviation Corp. v. NLRB , 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372 (1945)

(quotation marks omitted).

Applying Section 8 to a common issue, the Board has long held that an employer may not prohibit union solicitation by employees who are not on working time¹ irrespective of whether they are in working or non-working areas of the employer's property. Stoddard–Quirk Mfg. Co. , 138 N.L.R.B. 615, 621 (1962)

. An employer also may not prohibit distribution of union literature by employees who are in non-working areas and not on working time. Id . An employer may prohibit distribution in working areas, however, because “the employer's interest in cleanliness, order, and discipline [in a working area] is undeniably greater than it is in nonworking areas.” Id. at 620. This petition involves MBUSI's alleged interference with protected solicitation and distribution in violation of Section 8.

A. The MBUSI Solicitation and Distribution Rule

In Vance, Alabama, MBUSI operates two plants at which it manufactures luxury automobiles. In May 2012, the UAW began a campaign to unionize MBUSI's employees in Vance. MBUSI has a policy of strict neutrality with respect to unionization but maintains rules regarding solicitation and distribution of non-work related material by employees on MBUSI property. In pertinent part and for the pertinent time period, MBUSI's solicitation and distribution rule read as follows:

MBUSI prohibits solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.

The General Counsel contends that this rule is overly broad because an employee would reasonably interpret the rule to prohibit protected union solicitation. Specifically, while an employer may not prohibit union solicitation in a working area by an employee not on working time of an employee not on working time, the final “or” in MBUSI's written rule suggests that MBUSI bars all solicitation in working areas.

B. MBUSI Team Centers

The MBUSI plant at issue in this case has 19 team centers, 15 of which are immediately adjacent to the production line and all of which are adjacent to the logistics aisle, an indoor path used by forklifts and other motorized vehicles to transport parts in the assembly area. The few team centers that are not immediately adjacent to the production line are between 10 and 60 feet from the production line. Some team centers are completely or partially walled, while other team centers are separated from the production line by chains.

Team centers serve several functions in the MBUSI production process. They serve as offices for Group Leaders and Team Leaders and as observation posts for engineers and quality personnel. From the team centers, these personnel supervise a wide variety of aspects of production along the line, including quality, performance, machinery and tools, parts and equipment, output, shift assignments, and safety. Team centers also serve as second offices for human resources staff and upper management. Finally, at the beginning of each shift, Group Leaders use team centers to conduct pre-production meetings, after which the incoming shift relieves the outgoing shift. Employees often gather in their team center for an indeterminate period before the pre-production meeting and may use the team center during shift and meal breaks (although about half eat in MBUSI's on-site cafeteria).

MBUSI's policy is to treat team centers as work areas when the production line is running and as non-work areas when the production line is halted. Typically, the production line runs 24 hours a day, 7 days a week, except for 30–minute meal breaks, 10–minute shift breaks, and a brief pause during a shift change. Per MBUSI policy, only during production line pauses (i.e. shift and meal breaks) may MBUSI employees distribute non-work literature to other MBUSI employees in the team centers.

On June 20, 2013, employee David Gilbert went to his team center a few minutes before his shift began. Gilbert's team center is completely walled and approximately 10 feet from the production line. In the team center, Gilbert distributed copies of a pro-union flyer to other off-duty employees. Gilbert's Team Leader and a human resources representative each separately spoke with Gilbert and informed him that he was not permitted to distribute literature in the team center while the production line was moving. Gilbert was not disciplined, and the conversation was polite and non-threatening.

C. The MBUSI Atrium

The MBUSI atrium is the first room that an employee enters after arriving for work, parking, and passing through a security turnstile. The atrium is approximately 60 feet wide by 100 feet long. In the atrium, MBUSI maintains a security kiosk, a merchandise store, a medical office, a vehicle leasing desk, and an Alabama Credit Union branch. MBUSI uses the atrium to provide company and employee information through bulletin boards and television monitors. Because it accommodates several hundred employees beginning and ending their shift each day, the atrium becomes extremely congested and busy during shift change.

In late August, 2013, Gilbert, Kirk Garner, and several other MBUSI employees were distributing UAW handbills in the atrium during a shift change. Two MBUSI human resources representatives approached Garner and informed him that MBUSI prohibits distribution of literature in the atrium. A few hours later, the human resources representatives met with Garner and told him that MBUSI management had decided to permit distribution of literature in the atrium. Garner, a member of the UAW leadership council, informed Gilbert and understood from that conversation that employees were thereafter permitted to distribute literature in the atrium.

II. PROCEDURAL HISTORY

On September 3, 2013, Garner initiated the underlying action charging MBUSI with unfair labor...