Lead Opinion
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,
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,
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 time
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.
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 éat 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 manage
II. PROCEDURAL HISTORY
On September 3, 2013, Garner initiated the underlying action charging MBUSl with unfair labor practices. On February 21, 2014, the General Counsel consolidated Garner’s charge with two charges filed by the UAW in October 2013 and January 2014 respectively. The ALJ conducted a three-day hearing in April 2014 and issued his decision in July 2014. The ALJ found that MBUSl had violated the act as follows:
(a) Maintaining an overly broad solicitation and distribution rule which employees reasonably would understand to prohibit solicitation, in work areas, by employees not on working time of other employees not on working time.
(b) Prohibiting an employee, not on working time from distributing union literature in one of [MBUSI’s] team centers, which are mixed use areas within [MBUSI’s] plant.
(c) Prohibiting employees not on working time from distributing union literature in the atrium, which is a mixed use area within [MBUSI’s] plant.
Among other things, the ALJ recommended that the Board order MBUSl to rescind its written solicitation and distribution rule and to cease and desist from prohibiting distribution of literature in the team centers and atrium by employees not on working time of employees not on working time.
MBUSl filed with the Board 22 exceptions to the ALJ’s order. In its brief, MBUSl primarily argued that the ALJ had misapplied the law regarding MBU-SI’s written solicitation and distribution policy, the team centers, are work areas when the production line is moving, certain employees were not supervisors, and the atrium incident could not be a violation in light of its de minimis impact. On November 26, 2014, the Board affirmed the ALJ’s decision and adopted the ALJ’s proposed order with a slight modification to the remedy.
•On January 23, 2015, MBUSl filed with this Court a petition for review of the Board’s order (the Order). On February 9, 2015, the General Counsel. filed a cross-petition for enforcement.
MBUSl contends the Board erred in finding that MBUSI’s written solicitation and distribution policy was unlawful because MBUSl could and did rebut the presumption that its ambiguous rule interfered with or restrained protected activity. Additionally, MBUSl insists the Order is overly broad in imposing a remedy as to all team centers after explicitly considering only the team center in which Gilbert was censured. MBUSl states more broadly that the Board’s mixed-use findings as to both the team centers and the atrium represent an unexplained departure from precedent. MBUSl also contends the Board erred in failing to find special circumstances justifying the prohibition on
The General Counsel answers that the Board need not find that MBUSI’s employees subjectively believed the policy prohibited protected activity. Rather, the test is objective, and an employer’s mere maintenance of an overly broad rule constitutes a violation. As to the team centers, the General Counsel contends the Order was consistent with precedent holding “[wjhere an employer permits both work and non-work activities of a non-incidental nature to occur in the same area, the Board properly deems it a mixed use area.” Likewise, the General Counsel states that MBUSI failed to support its special circumstances argument and the ALJ’s decision was not limited to the team center in which Gilbert was censored. Finally, the General Counsel contends MBU-SI waived its right to challenge the ALJ’s finding that the atrium is a mixed-use area by failing to raise it to the Board in MBU-SI’s exceptions to the ALJ’s proposed order. , ,
MBUSI replies that its failure to challenge the ALJ’s holding was ■ excused by “extraordinary circumstances.” Specifically, while the ALJ found a violation notwithstanding the de minimis effect of MBUSI’s interference, the Board changed the rationale for MBUSI’s violation and found a violation due to interference that was not de minimis.
III. STANDARD OF REVIEW
The Court reviews de novo the Board’s legal conclusions and reviews for substantial evidence the Board’s findings of fact. See NLRB v. Babcock & Wilcox Co., 351-U.S. 105, 112,
“[I]n light of its experience,” the Board may fashion general rules and presumptions regarding the lawfulness of employer restrictions “without the necessity of proving the underlying generic facts which persuaded it to reach that conclusion.” Beth Israel Hosp. v. NLRB,
IV. DISCUSSION
We consider in turn MBUSI’s written solicitation and distribution rule, the distribution of union literature in MBUSI’s team centers, and the distribution of union literature in the MBUSI atrium.
A. MBUSI’s Written Solicitation and Distribution Rule
A rule explicitly restricting protected activity is per se unlawful. Martin Luther Mem’l Home, Inc.,
When an employer attempts to rebut the presumption of unlawfulness with extrinsic evidence of either communication or application, the ALJ and the Board ask whether the evidence shows that the employer “convey[ed] an intent clearly to permit” the protected activity. Essex Int’l,
1. Cases applying the Essex rule a. Cases finding rebuttal
In Standard Motor Products, in an effort to rebut the presumption of unlawfulness, an employer offered evidence of both clarifying communication and application.
' In The Broadway, the ALJ considered Standard Motor Products to stand for the proposition that an employer could rebut the presumption upon showing that it had clarified the rule “either through oral communication, or in such a manner as to convey an intent to permit [lawful] solicitation.” The Broadway,
In American Safety Equipment Corp., the Tenth Circuit considered the propriety of the Board’s having set aside a union election due to the employer’s overbroad solicitation and distribution rule.
In Motor Inn of Perrysburg, the Sixth Circuit considered a violation regarding overly broad solicitation and distribution rules.
In. Chicago Magnesium Castings Co., the ALJ found that an employer’s ambiguous rule was a violation “even though it appears from evidence in the record discussed herein, that [the rule] has not been consistently enforced.”
In Ichikoh Manufacturing, the Board disagreed with the ALJ’s application of The Broadway and found that the employ^ er had failed to rebut the presumption. Ichikoh Mfg.,
In Laidlaw Transit, an employer argued that it “overcame the presumption of invalidity” attached to its overbroad solicitation and distribution policy “by communicating to its employees that the policy permitted [protected activity].”
In Shaw, the ALJ rejected an attempt by several employers to rebut the presumption that their overly broad distribution rule was a violation of Section 8. 350
In Aluminum Casting & Engineering Co., the Seventh Circuit considered whether an employer had rebutted the presumption of invalidity by posting a lawful rule in its cafeteria.
c. Summary
The cases applying Essex indicate that, to dearly convey an intent to permit protected activity, an employer’s communication must be broadly disseminated and authoritative. See Aluminum Casting & Eng’g,
Having attempted to articulate the line between sufficient and insufficient evidence that an employer clearly conveyed an intent to permit protected activity, we consider how (and whether) the Essex rule was applied in this case.
2. The ALJ’s application of the Essex rule
In the instant case, the ALJ correctly identified the Martin Luther Memorial
The ALJ next considered whether these findings rebutted the presumption -of unlawfulness. First, the ALJ acknowledged that “an employer can cure an ambiguity in a work rule by communicating further with employees” and that “[MBUSI’s] defense may extend beyond the argument that it did not enforce the rale in its handbook.” Although the ALJ agreed with MBUSI that its non-enforcement “would contribute to how employees reasonably would understand [the rule’s] meaning,” the. ALJ expressed skepticism that MBU-SI’s evidence showed that it had dearly conveyed to • its employees an intent to permit solicitation in work areas by employees not on working time. The ALJ believed that MBUSI’s employees would continue to rely on the written rule “for a definitive answer” and concluded that MBUSI therefore violated the Act by maintaining an overbroad solicitation rule.
We see no reversible error in the ALJ’s analysis. MBUSI showed that it generally permitted protected solicitation, but that is not necessarily enough. See Ichikoh Mfg.,
B. Distribution of Union Literature in MBUSI Team Centers
While the Act requires an employer to permit distribution of literature by employees on non-working time in non-work areas, an employer may prohibit distribution at any time in work areas. See Stoddard-Quirk Mfg.,
When deciding whether an area is a work area as contemplated by Stoddard-Quirk, “the Board has looked at the quality and quantity of work, which occurs in the area at issue, and examines whether the work is more than de minimus [sic] and whether it involves production.” Brockton Hosp.,
Mixed-use areas have been found in lunchrooms,
1. A review of cases involving mixed-use areas
The “mixed-use area” moniker developed out of two different situations: (1) a converted mixed-use area, which is a work area that periodically accommodates non-work (or a mix of both work and non-work) for a fixed duration;
a. Conversion cases
The earliest conversion case, Rocking-ham Sleepwear, does not use the term “mixed-use area” at all. See generally
A few years later, in Oak Apparel, the Board considered a similar situation.
Years later, in Ford Motor Co., the Board affirmed an ALJ’s application of Oak Apparel to a case involving an employer’s automobile engine test facility.
The Second Circuit considered the conversion issue in Kaynard ex rel. NLRB v. Palby Lingerie, Inc.,
Where, as here, a production area is regularly used by employees as a lunch area with the “full knowledge and approval” of the employer, the Board’s position is- that the area ceases, for the duration of the lunch period, to be a“work area” where distribution can be prohibited.
Id. Finding the rule to be reasonable, the Second Circuit affirmed a Board order finding that the employer had violated the ■Act when it fired an employee for repeatedly distributing union material in the production area during lunch breaks. Id. at 1051,1052 n.6.
The Sixth Circuit has also considered a conversion case, United Parcel Service, Inc. v. NLRB, in which the employer had disciplined an employee-driver for distributing a union newspaper in a check-in area, “where drivers congregate before [their work day starts].”
On petition for review, the Sixth Circuit affirmed and enforced the Board’s order. United Parcel Serv., Inc.,
b. Permanent mixed-use area cases
In Transcon Lines, the Board challenged an interstate freight handling, hauling, and storage company’s conduct in censuring an employee who distributed material critical of the local union in the “drivers’ room” of the company terminal.
The Board adopted the ALJ’s proposed order, which rejected for several reasons the company’s assertion that it lawfully prohibited distribution in. the drivers’ room. Id. First, the company had no nondiscriminatory solicitation and distribution rule. Rather, the company permitted union distribution and miscellaneous non-protected distribution in the drivers’ room. Id. Second, to the extent one could determine a rule, the company’s rule was impermissi-bly vague. Id. Third, “the drivers’ room is, at best, a mixed use area, where drivers may either work or relax.” Id. Fourth, the drivers’ room “is also the only area where drivers can regularly communicate with one another on subjects of mutual concern.” Id. The Board therefore found that the company had impermissibly prohibited protected distribution in violation of the Act. On appeal, the Fifth Circuit affirmed the Board’s finding regarding the drivers’ room but remanded the case upon concluding that the remedy was overbroad relative to the ALJ’s factual inquiry and findings. Transcon Lines,
In Superior Emerald Park Landfill, the Board affirmed the ALJ’s finding that an employer unlawfully prohibited distribution of union literature in a company lunchroom.
In Foundation Coal West, a two-member panel of the Board
After briefly discussing Trmscon Lines and United Parcel Service, the ALJ found significant the fact that the employer’s “main .function is the digging, removal, sorting, and distribution of coal.” Id. at 150. According to the ALJ, “[i]t is the main production areas of an employer’s facility where the hazards of littering and maintaining order are paramount over employee distribution of literature.” Id. Although there was “no doubt that some work incidental to [the employer’s] main function takes place in the [h]allway,” the hallway was at best a mixed-use area, “where both socializing and nonproduction work, incidental to [the employer’s] main function, the production of coal, take place.” Id. Therefore, the employer had violated the Act. In its brief affirmance, the two-member panel stated “we agree that the hallway at issue was, a mixed use area in which extensive nonwork activities, such as dining and socializing, occurred and that, consequently, under extant Board precedent, [the employer] was not free to ban distribution of union literature in the hallway.” Id. at 147 n.l.
Recently, the D.C. Circuit considered the Board’s standards for mixed-use areas. See DHL Express, Inc. v. NLRB,
The Board affirmed but disagreed on the basis for affirmance. Id., at 1742. Two members based their affirmance on the employer’s interference with distribution in a mixed-use area, stating that “an employer’s right to preclude distribution of literature in working areas does not extend to mixed-use areas.” Id. at 1742 n.l. One member believed that “the hallway could reasonably be considered a working area even if all activity within that area did not involve employees performing work.” Id. That member would have affirmed on the ALJ’s alternate finding that the employer discriminated against union activity in its enforcement of the no-distribution rule. Id.
c. Summary of the mixed-use area cases
The mixed-use area cases reflect the variance typical of a fact-intensive analysis. The core considerations for both conversion and permanent mixed-use areas are (1) the volume of work and non-work activity; (2) whether the non-work activity is limited to specific time periods; and (3) the nature of work and nonwork activity. Cf. DHL Express,
2. The ALJ’s findings and the Order .
The ALJ found that the team centers are mixed-use areas and that MBUSI therefore interfered with protected activity in violation of the Act when it reprimanded Gilbert for distributing union literature in his team center in the minutes before shift change. In deciding the team centers are mixed-use areas, the ALJ noted that the team centers have refrigerators, microwave ovens, and picnic tables in the same general area as filing cabinets, desks, and computers. The ALJ also gave weight to the fact that employees use the team centers for lunch, citing Superior Emerald Park Landfill,
The Board affirmed. One member of the Board noted separately that he considered it unnecessary for the Board to determine the status of any team center other than the one in which the June 20, 2013 incident occurred. Among other remedies, the Board ordered MBUSI to cease and desist from prohibiting employees not on working time from distributing literature in mixed-use areas, which the Board defined to include all of MBUSI’s team centers.
We conclude the Board’s affirmance was error for two reasons. First, the ALJ failed to recognize the distinction between converted and permanent mixed-use areas and failed to analyze the relative volume and nature of work and nonwork activity in the team centers. Second, the ALJ imposed a remedy that exceeded the scope of his factual inquiry and findings. We therefore decline to enforce the Order as to this violation and remand to the Board with instructions as stated below.
a. The inadequately supported mixed-use area finding
Team centers are walled or chained areas within the production area of MBUSI’s plant. MBUSI uses the team centers daily in its production process as offices for Group Leaders and Team Leaders, as observation posts for engineers and quality personnel, and as the marshalling place for pre-production meetings. At least 15 of the 19 team centers are immediately adjacent to the production line, and all of the team centers are adjacent to the logistics aisle, an indoor path used by forklifts and other motorized vehicles to transport parts in the assembly area. The work that takes place in the team centers could hardly be described as “nonproduction” or “incidental” to MBUSI’s main function, manufacturing automobiles. On the other hand, the General Counsel properly notes that employees often gather in the team centers for an indeterminate period before the pre-production meeting and use the team center during shift and meal breaks. During this, time, employees may take advantage of the refrigerators, microwave, and picnic tables that can be found in the team centers.
The ALJ reasoned that “[t]he fact that the team centers serve as meeting and eating places for off-the-elock employees taking lunch or break time and also as offices for [MBUSI] clearly weighs in favor of finding the centers to be mixed use areas.” The ALJ therefore held that “the team centers, which employees use to eat lunch while on nonworking time, properly are classified as mixed use areas.” In support of its conclusion, the ALJ quotes Superior Emerald Park Landfill, which observed that “if an area is used for production during most of the day, but serves as a lunchroom during the lunch period, distribution of literature may not be prohibited.”
Some language in Superior Emerald Park Landfill appears to suggest that if a production area is used for lunch, distribution must be perpetually allowed in the area. See
The ALJ’s analysis, affirmed by the Board without comment, does not support the conclusion that the team centers are permanent mixed-use areas. The only non-work use to which the ALJ refers occurs during the lunch period and scheduled breaks. This evidences conversion, not perpetual mixed use.
The ALJ’s analysis cannot support a permanent'mixed-use finding for a second reason: the ALJ failed to “carefully consid-ere ] the type, duration, and frequency of work and nonwork occurring in the [team centers] prior to concluding that [they] should be considered [ ] ‘mixed-use’ area[s].” See DHL Express,
Although we find that the ALJ misapplied the mixed-use test to conclude that the team centers are permanent mixed-use areas, we note that the Order may be supportable in a narrowed form. As discussed above, if an employer temporarily converts a work area to non-work or mixed-use, the employer may not prohibit distribution of literature among employees on non-working time. See United Parcel Serv.,
We believe that Board precedent may have supported a conclusion that the team centers are converted mixed-use areas during the pre-shift period. The ALJ did not analyze the effect of the pre-shift period on the work status of the team centers, however, and we may not adopt alternate grounds to enforce a Board order. See First Nat. Maint. Corp.,
b. The overbroad remedy
Even if we agreed with the Board’s mixed-use finding, we would be compelled to deny enforcement of the Order as written because it imposes a remedy that exceeds the scope of its factual findings by a factor of 19, In compliance with Stoddard-Quirk Manufacturing, after concluding that all 19 team centers are mixed-use areas, the ALJ considered whether special circumstances justified MBUSI’s prohibition on distribution of literature in team centers when the production line is moving.
Before the ALJ, MBUSI offered testimony regarding the pace of its just-in-time production process, the proximity of team centers .to the production line and the logistics aisle, the dangers associated with vehicular traffic in the logistics aisle, and MBUSI’s safety concerns regarding distribution of literature. The ALJ noted the persuasiveness of some of MBUSI’s testimony, stating as follows:
The team center depicted in [MBUSI’s offered] video was so close to the production line and so proximate to the hustle and bustle of the assembly process it produced an intuitive feeling that this busy place certainly must be a work area, even if there is a picnic table for workers to use on breaks and at lunch. At the least, it created the impression that unique circumstances warranted an exception to the general rule that an employer could not prohibit distribution of union literature in a mixed use area,
(emphasis added). The ALJ noted the significant differences among the 19 team centers, however, and concluded that “it would not be appropriate to generalize from the video.” The ALJ concluded that MBUSI failed to meet its burden of showing special circumstances as to the team center where Gilbert was distributing union literature, “which is the only- team center relevant to the allegations,” Therefore, the ALJ reasoned, “I need not, and do. not, decide whether special circumstances existed at any other team center, such as the one depicted in the video.”
Although only one team center was relevant to the inquiry and the ALJ explicitly declined to consider whether MBUSI met its burden of proving special circumstances at any of the other 18 team centers, the Order requires MBUSI to cease and desist from distributing literature in “its team centers.” Nothing in the Order limits its scope to the sole team center that the ALJ considered. Rather, even though MBUSI’s evidence “created . the . impression that unique circumstances warranted an exception to the.general rule” at least as to one team center, the Order uniformly applies to all team centers. This was error.
As the former Fifth Circuit noted in Transcon Lines, when the Board “narrow[s] the case for decision purposes,” it may not then “broaden it to the widest possible limits for purposes of remedy.”
C. Distribution of Union Literature in the MBUSI Atrium
Before the ALJ, MBUSI contended that any interference with Section 7 lights was de minimis because within hours of -stop
MBUSI filed 22 exceptions to the ALJ’s decision and recommended order, none of which identified the ALJ’s finding the atrium to be a mixed-use area. In fact, MBU-SI expressly disavowed its previous argument that the atrium was a work area, stating that it wished to “remov[e] that issue from consideration.” Instead, MBU-SI insisted that any interference with protected -activity was de minimis and not a sufficient basis for a violation. The Board disagreed and affirmed the ALJ as to both the mixed-use finding and the violation.
Before this Court, MBUSI contends the Board erred in concluding that the MBU-SI atrium is a mixed-use area.
Section 10 of the Act precludes judicial review of an error not first raised before the Board absent extraordinary circumstances. 29 U.S.C. § 160(e). We find nothing extraordinary in .the circumstances that led MBUSI to make the tactical decision to focus its argument before the Board on the de minimis issue. We also find nothing extraordinary in the fact that the Board would not have entertained a motion for reconsideration on the mixed-use issue for the same reason we do not consider the issue: waiver. With nothing to review, we summarily enforce the Order as to this violation.
V. CONCLUSION
For the foregoing reasons, we enforce the Order with the exception of the last four
Enforced in Part, Enforcement Denied in Part, and Remanded in Part with Instructions.
Notes
. "Working time” refers to "periods when employees are performing actual job duties, periods which do not include the employees’ own tíme such as lunch and break periods.” See Our Way, Inc.,
. The Board ordered that MBUSl rescind its written solicitation and distribution rule and gave MBUSl a few options to replace or amend its employee handbook. The Board also required MBUSl to file a sworn certification with the NLRB attesting to the steps it has taken to comply with the order.
. In Bonner v. City of Prichard,
. Contrary to the General Counsel's suggestion, the Essex rule permits an employer to rebut the presumption of invalidity that attaches to any overbroad solicitation or distribution workplace rule. See United Servs. Auto. Ass’n,
. This quote would be questionable if taken out of context. See Lafayette Park Hotel,
. The Board also mentions in a footnote that The Broadway does not support the ALJ's broad proposition because "[i]n that case, no exceptions were filed concerning the [ÁLJ's] finding that [the employer] had rebutted the presumptive invalidity of the no-solicitation rule.” Ichikoh Mfg.,
. The General Counsel attempts to cast doubt upon the Essex rule by discussing a series of cases holding that "mere maintenance” of an overbroad rule is a violation. See Martin Luther Mem’l Home,
. The specific portions affected are as follows: paragraphs 1(a), 2(a), and 2(b) and the first, fourth, and fifth "We Will Not” paragraphs in the Appendix to the Order,
. Kaynard ex rel. NLRB v. Palby Lingerie, Inc.,
. DHL Express, Inc.,
. Metro-W. Ambulance Serv., Inc., 360 N.L.R.B. No. 124,
. U.S. Postal Serv.,
. Kaynard, 625 F.2d at 1052 n.6 ("Where, as here, a production area is regularly used by employees as a lunch area with the ‘lull knowledge and approval’ of the employer, the Board's position is that the area ceases, for the duration of the lunch period, to be a ‘work area’ where distribution can be prohibited. "); Rockingham Sleepwear,
. See Metro-W.,
. The Supreme Court later determined in a different case that a two-member panel may not exercise the Board’s delegated authority. See New Process Steel, L.P. v. NLRB,
. We attribute Superior Emerald Park Landfill's incomplete statement of the holding in conversion cases to the fact that Superior Em-er'ald Park Landfill is not a conversion case at
. The specific portions affected are as follows: the last four words of paragraph 1(b) and the words "team centers and” in the Appendix to the Order.
. With Court approval, MBUSI withdrew from consideration its de minimis argument.
. The Majority does not explain this “perpetually” standard. Is it that an area can be used at all times for either work or nonwork activities or both? Or is it that an area is used for both types of activities at all times? What about 80% usage of a space for either? 50%? 33%?
Dissenting Opinion
dissenting in part:
I agree-with the Majority’s ruling about the atrium violation and Mercedes-Benz’s solicitation and distribution policy. I also agree with the Majority that the ALJ’s remedial order regarding the team centers was overbroad. The order should be remanded to the Board to either narrow its scope or do more factual development about special circumstances at the eighteen team centers for which the ALJ did not make findings.
However, I do not agree with the Majority’s holding that “the ALJ failed to recognize the distinction between converted and permanent mixed-use areas and failed to
The ALJ and the Board followed the Board’s precedent in designating the team centers as mixed-use areas after finding and reviewing the facts. I would affirm the Board’s ruling that the team center where Mr. Gilbert distributed union materials is a mixed-use area. I respectfully dissent.
I.
We apply a narrow and deferential standard of review to Board decisions.
“[T]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ... be conclusive.” 29 U.S.C. § 160(f). “So long as the Board has made a plausible inference from the record evidence, we will not overturn its determinations, even if we would have made different findings upon a de novo review of the evidence.” Cooper/T. Smith, Inc. v. NLRB,
We also defer to the Board’s expertise in developing rules that create- legal- presumptions. See Republic Aviation Corp. v. NLRB,
II.
The Majority’s opinion presents the distinction between “permanent” and “converted” mixed-use areas as a framework established by the Board. Indeed, the Majority cites “45 years of Board precedent” to support its distinction. But I read none of the cases it cites to state a rule creating or even distinguishing between two types of mixed-use categories. It is beyond our deferential role to create a rule and then hold that the ALJ erred in failing to apply it. See NLRB v. Curtin Matheson Sci., Inc.,
The Majority recognizes that the Board has never clearly established a test for deciding whether an area is mixed-use. And it is the Board that has the expertise to establish a test if it decides one is necessary. The Board can also choose to grant its ALJs flexibility in crafting'solutions for a circumstance that is unique. See Beth Israel Hosp.,
The Board’s allowance of flexibility to ALJs in designating mixed-use areas results in some variations in that designation. For example, in Transcon Lines,
The Majority chooses one understanding of the Board’s approach to these cases and makes it a new rule for how ALJs must analyze the facts of all eases about distributing union materials. Under the Majority’s rule, an ALJ will now be required “to analyze the relative volume and nature of work and non-work activity” in a given area. If both work and nonwork activities “perpetually”
The Majority also cites the D.C. Circuit for support. That court said that “[t]he Board has for decades—with court approval—found areas in which minimal or solely incidental work is conducted are to be considered ‘mixed-use’ areas in which a prohibition on distribution during non-work time has to be justified by special circumstances.” DHL Express, Inc. v. NLRB,
III.
I view the ALJ’s decision that the team center was a mixed-use area to be supported by substantial evidence. In Stoddard-Quirk, the Board held that employees can distribute union literature in nonworking areas on the employer’s premises.
This case requires only the simple application of our precedent in NLRB v. Transcon Lines,
This ALJ found that the team centers at issue here were mixed-use areas based on
Our job is to review this finding to see whether it is supported by substantial evidence in the record. This record shows the team centers are used for certain work functions, like pre-shift employee meetings. They contain a few desks and computers, and work-related items like attendance calendars and bulletin boards are fixed to the walls. But the team centers also have the trappings of a typical break-room, like refrigerators and microwaves for employees to use during breaks and before shifts. The centers also contain several tables that employees use for eating, drinking, and relaxing during lunch and break periods. Like the drivers’ room in Transcon Lines, the team centers are used for a combination of work and non-work functions. The ALJ’s designation of the team center as a mixed-use area was supported by' substantial evidence.
IV.
Also, in my view, the Majority fails to properly credit the analysis in the ALJ’s order. The Majority opines that the ALJ erred because “the Order does not limit the mixed-use finding to any specific period of time.” To the contrary, the ALJ ordered Mercedes-Benz to “[cjease and desist from ... [prohibiting employees not on working time from distributing literature to other employees not on working time in a mixed use area.” This effectively limits the mixed-use status of the team centers to lunch periods, scheduled breaks, and pre-shift changes. While I don’t agree with the Majority’s invention of “converted mixed-use areas,” even accepting it, the ALJ’s order complies.
I respectfully dissent.
. In Bonner v. City of Prichard,