Block on Trump's Asylum Ban Upheld by Supreme Court
In September 2013, an employee at the Mercedes-Benz plant in Vance, Alabama, made a claim alleging unfair labor practices. The employee asserted that the plant's management was preventing employees from talking about their labor union or soliciting for the union during work hours.
As you probably know, the Fair Labor Standards Act (FLSA) expressly allows employees to engage in union activities and prevents employers from interfering with that right. In response to the complaint against Mercedes-Benz, an administrative law judge with the National Labor Relations Board found three violations of the FLSA.
Here's what in-house counsel need to know from this decision:
Mercedes-Benz had a policy of prohibiting employees from soliciting for any purpose during work hours. The policy was neutral with respect to unions; in fact, Mercedes-Benz claimed that it routinely didn't enforce the rule, allowing employees to engage in "lawful" solicitation at work without penalty.
Nevertheless, NLRB Administrative Law Judge Keltner W. Locke found this policy to be overbroad. Even though it didn't explicitly forbid union discussions, Locke said that employees could reasonably interpret the policy to encompass protected union speech.
Mixed Use Areas
The second and third violations centered around "mixed use areas" and whether employees could solicit there during work hours. A mixed use area is a place that can be considered both a work area (where solicitation can be forbidden) and a non-work area (where solicitation can't be forbidden).
One of the places in question was the Team Center -- a non-work, office-type area where employees held team meetings, but which also acted as a break room. The other was the Atrium -- a large, open space through which employees enter and leave the building.
Judge Locke found that both of these areas were both work and non-work areas; thus, Mercedes couldn't prohibit union solicitation there. (Mercedes never actually prohibited union solicitation in the Atrium, but still argued that it was a work area.)
It's Still Illegal Even If It's Not Enforced
According to Judge Locke, Mercedes went wrong by erring too far on the side of union restriction. Though Locke found that Mercedes didn't intentionally stifle union activity with its catch-all solicitation policy, the policy's breadth could have had that result. A much better policy would have clearly specified that union solicitation was permitted. The lesson here is that even having such a policy on the books could violate the FLSA, even if the company doesn't actively stifle union activity.
The other problem was the mixed use areas. The Team Center is especially troublesome, because it was essentially a break room (with microwaves and refrigerators) and an office (with desks and file cabinets). The Atrium was a work area, in Mercedes' view, because of the presence of a security kiosk and a vendor who sold things to visitors and employees. Mercedes could have more explicitly separated work and non-work areas. When an area can be used for both purposes, the default in terms of the FLSA is to treat the area like a non-work area for union solicitation.
When in doubt, err on the side of union protection. Even a policy that's not enforced can still violate the FLSA.