By Ronald Miller, J.D. Substantial record evidence supported NLRB findings that the main hallway in an employer’s distribution facility was a “mixed-use” area, so that the employer unlawfully prohibited employees from distributing union literature during non-work time in a non-work area, ruled the D.C. Circuit. The Board rationally balanced the interests of the parties in concluding that this “mixed use” should be treated the same as a non-work area in terms of employee access to distribute union literature, the appeals court found (DHL Express, Inc. v. NLRB, January 21, 2016, Brown, J.). The hallway. DHL is an express delivery service with a single U.S. hub located on the grounds of the Cincinnati Airport that operates 24 hours a day and employs over 1,200 workers. Because the facility is on the airport grounds, DHL must comply with safety and security regulations, which mean that ingress and egress to its main hallway are controlled with a security checkpoint located at the far end. The vast majority of the employer’s employees enter and exit through this main hallway. The hallway is used by the company for a variety of purposes and contains bulletin boards and wall-mounted television screens, which display upcoming company events, weather reports, and production statistics. Computer stations are available for employees to use during non-work time to view benefit and payroll information and to check personal email. The company has also used the hallway for company-sponsored events scheduled and supervised by management. Similarly, under a collective bargaining agreement with the Teamsters, the union was provided with access. Certain work-related activities also occurred in the hallway. Prohibition on solicitation. DHL’s Employee Handbook includes a Solicitation and Distribution policy which prohibits “interference from persons who are pursuing a purpose not related to DHL’s normal business” and forbids any solicitation by non-employees at any time unless “specifically authorized or sponsored by DHL.” DHL also purports to have an “unwritten” policy that requires security staff to prevent employees from loitering or congregating in the hallway, except during company-sponsored or approved events. However, DHL admitted that employees have never been officially notified of this security policy. Passing out union literature. In December 2010 and February 2011, four different employees handed out union literature in the hallway. They were told by security that they could not loiter in the hallway but could handbill in the cafeteria or break room. When the employees complained that the Teamsters had been allowed to distribute literature, the company reiterated that no employees were permitted to loiter in the hallway. The American Postal Workers Union (APWU) brought two unfair labor practice charges alleging that the company violated Sec. 8(a)(1) by prohibiting employees from distributing union literature during non-work time in a non-work area of its facility. “Mixed-use” area. Ultimately, the NLRB ruled that the hallway constituted a “mixed-use” area in which DHL could not prohibit distribution during non-work time. The Board ordered DHL to cease and desist from enforcing its no-distribution rule and to notify employees that the rule would not be enforced in the hallway. DHL petitioned for review and the Board filed a cross-petition for enforcement of its order. Challenge preserved. While DHL urged that the Board’s “mixed-use” presumption was “unreasonable, irrational, and arbitrary,” the Board argued this rationality argument was not presented below and not properly before the court. The question then was whether DHL challenged the rationality of the “mixed-use” presumption below in a manner sufficient to put the Board on notice. An administrative law judge’s opinion explicitly characterized the hallway as a “mixed-use” area. DHL seemed to accept the mixed-use presumption but challenged its application, not its validity. Precedent in the D.C. Circuit indicates a “vague exception” to an ALJ’s finding may be sufficient “to preserve an issue for appeal when petitioner’s ‘brief in support of its exceptions’ adequately put[s] the Board on notice” of the grounds on which the petitioner is objecting. As a consequence, the court concluded that DHL challenged the ALJ’s application of the presumption. Balancing of rights. Here, the court pointed out that an employer’s ability to restrict pro-union activity by an off-duty employee legally on the premises—in a non-work area—is quite limited. When organizing activity is undertaken by employees lawfully on the employer’s property, the proper balance is between their right to organize and an employer’s managerial rights. While a company may be able to dictate the terms of access to strangers, contractors, and other business invitees, “no restriction may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.” Deference. Because Congress has given the Board broad discretion, a court must uphold the Board rule as long as it is “rational and consistent with the Act.” The Board has adequately explained the reasons for applying the same presumption to mixed-use areas as to non-work areas. This presumption necessarily incorporated a balancing of employer and employee interests, and no court precedent prevented the Board from reasonably concluding the balance should be the same for non-work and mixed-use areas. And the Board’s mixed-use presumption is quite reasonable: It provides predictability for employers and employees, and it includes a “special circumstances” exception for employers. Substantial evidence. Here, there was no question that the employees often congregated and socialized in the hallway, which featured televisions where employees for watching weather and company updates, computer stations for checking benefits information and personal email, and areas for employees to use personal cellphones. DHL had allowed the hallway to be used for various fairs, charity drives, raffles, and the sale of merchandise. Thus, even though incidental work occasionally occurred in the hallway, the Board was justified in designating it as a “mixed use” area. Because substantial evidence in the record supported the Board’s findings, the NLRB’s application for enforcement was granted.
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