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NLRB Holds Employer’s Distribution and Solicitation Policy Violates the National Labor Relations Act

Published:  August 13, 2014

In its latest decision aimed at scrutinizing employers’ workplace rules, the National Labor Relations Board found the distribution and solicitation policy of one employer unlawfully restricted employees Section 7 rights to unionize free from employer interference. In Mercedes-Benz U.S. International, Inc., it noted, “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.”

The handbook policy in question “prohibit[ed] solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.”  The NLRB held that this policy was unlawful because the language was ambiguous and did not clearly convey that employees could solicit in working areas during non-working times. As such, the NLRB concurred with the employee’s argument that the reasonable employee could interpret the policy as prohibiting an off-duty employee from discussing forming a union with another off-duty employee in a work area. 

Although the employer brought forth evidence of how it enforced the policy and allowed employees to freely solicit during non-work time in working areas, the NLRB found that the “mere maintenance of the rule, even without enforcement” violated the National Labor Relations Act.

This case serves to caution employers to carefully consider the wording of policies and rules in their handbooks.  As the NLRB continues its latest trend of casting a critical eye on workplace rules, employers concerned about potential pitfalls should consult legal counsel to update their handbooks and consider revising policies that may run afoul of the NLRA in light of decisions like this one.

If you have any questions regarding the National Labor Relations Board and its decisions, please contact any of the attorneys at Royal LLP at (413) 586-2288.