DHL Express, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2015 Decided January 21, 2016

No. 12-1072

DHL EXPRESS, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 12-1143

On Petition for Review and Cross-Application

for Enforcement of an

Order of the National Labor Relations Board

David A. Kadela argued the cause and filed the briefs for

petitioner.

Barbara Sheehy, Attorney, National Labor Relations

Board, argued the cause for respondent. On the brief were

John H. Ferguson, Associate General Counsel, Linda

Dreeben, Deputy Associate General Counsel, Usha Dheenan,

Supervisory Attorney, and Nicole Lancia, Attorney.

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Anton G. Hajjar and James B. Coppess were on the brief

for movant-intervenor American Postal Workers Union, AFL-

CIO in support of respondent.

Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: DHL Express, Inc. (the

Company) petitions for review of the December 22, 2011,

decision and order by the National Labor Relations Board

(NLRB or Board) finding the Company violated Section

8(a)(1) of the National Labor Relations Act (NLRA) by

prohibiting nonworking employees from distributing union

literature in the hallway of its facility. The Board seeks this

court’s enforcement of its order requiring the Company to

cease and desist. We deny the Company’s petition and grant

the Board’s cross-application for enforcement.

I.

This case is governed by Section 7 of the NLRA, 29

U.S.C. § 157, which dictates that “[e]mployees shall have the

right to self-organization, to form, join, or assist labor

organizations . . . and to engage in other concerted activities

for the purpose of collective bargaining or other mutual aid or

protection . . . .” It is a violation of the Act for an employer to

“interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in section 157 . . . .” Id. §158(a)(1).

Background

DHL Express, Inc. is an express delivery service that

moves mail and freight throughout the United States and in

many foreign countries. DHL’s only U.S. hub is located on

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the grounds of the Cincinnati Airport in Erlanger, Kentucky

(CVG). Jetliners arriving from domestic and international

destinations taxi directly to the sort facility where a

sophisticated system for unloading and reloading freight and

package containers ensures items reach their final

destinations. Over 1,200 workers are employed at the CVG

facility which handles between 560,000 and 630,000

packages each week. Most of this loading and unloading

activity occurs on the first floor and mezzanine level of the

main sort building. The facility operates 24 hours a day with

a part-time morning shift, part-time night shift, and a full-time

day shift. In 2011, fourteen of DHL’s employees were

represented by the International Brotherhood of Teamsters.

The American Postal Workers Union, AFL-CIO (APWU) had

been attempting to organize the Company’s remaining

employees.

Because the facility is on the grounds of the Cincinnati

airport, DHL must comply with the safety and security

regulations of the U.S. Customs Service, the Federal Aviation

Administration, and the Transportation Security

Administration. To comply with these security requirements,

ingress and egress to the hallway are controlled, with a

security checkpoint located at the far end. The vast majority

of DHL employees enter and exit through this main hallway

of the administration building. The hallway is used by the

company for a variety of purposes. It contains bulletin boards

and wall-mounted television screens which display upcoming

company events, weather reports, and production statistics.

And there are computer stations employees can 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.

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DHL organized and hosted a Wellness Fair, Financial Fair,

Education Fair, Autism Speaks fundraiser, and a promotion of

the DHL-sponsored IndyCar, complete with free t-shirts and

hats. These events were scheduled in advance with notice

provided to employees, and they were held at the end of the

overnight shift. Similarly, the collective bargaining

agreement with the Teamsters provided for union access. Per

that agreement, the Company permitted distribution of union

literature provided the union gave advance notice and allowed

DHL to specify the location and timing of the distribution.

And the ALJ credited testimony that a fitness company was

permitted to offer gym memberships, some employees sold

Super Bowl Raffle tickets in the hallway, and off-duty

employees talked on cell phones and had other social

interactions while transiting the hallway.

However, certain work-related activities do occur in the

hallway. Members of DHL’s quality control team

occasionally use the hallway to move damaged or misdirected

packages to the front entrance. And company representatives

frequently conduct tours for new employees and visitors,

which stop in the hallway.

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.” JA 56. Solicitation between employees

is prohibited during work time or in work areas. See id. DHL

also purports to have an “unwritten” policy which requires

security staff to prevent employees from loitering or

congregating in the hallway, except during company-

sponsored or approved events. DHL admits its employees

have never been officially notified of this security policy.

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In December 2010 and February 2011, four different

employees handed out union literature in the hallway. In

December when Vida Manuel distributed flyers she was told

by security staff that she could not handbill in the hallway.

Manuel responded that “she had seen the Teamsters in the

hallway doing it before at the tables and she thought she was

able to do it also.” JA 89, 353. Later that month, Manuel and

fellow employees Bob Woodyard and James Hamilton

handed out APWU’s holiday newsletter, standing by the

televisions. They were informed by Jennifer Miller, Captain

of 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, Miller reiterated that no employees were permitted

to loiter in the hallway. Miller notified the Human Resources

Manager who repeated the admonition. On February 25,

2011, Manuel, Woodyard, and Charles Teeters stood in the

hallway handing out literature and displaying posters. They

were again told it was against company policy to loiter and

asked to move to the cafeteria, a break room, or an outside

area. Each time the off-duty employees distributed literature

for about 20 minutes. They left — sometimes reluctantly —

when instructed to do so.

Procedural History

The APWU brought two unfair labor practice charges

against DHL, alleging that the Company violated Section

8(a)(1) by prohibiting employees from distributing union

literature during non-work time in a non-work area of its

facility on two occasions in December 2010 and once in

February 2011. The Regional Director issued a Complaint on

the charges on March 25, 2011.

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On May 16 and 17, 2011, during a hearing before an

Administrative Law Judge, the parties stipulated that, on three

occasions, off-duty DHL employees who were distributing

APWU literature in the hallway were told they could not

loiter there, informed they could distribute the literature

outside or in the cafeteria or breakroom, and were asked to

leave the hallway.

The General Counsel claimed the hallway is a non-work

area and thus DHL could not prohibit the distribution of union

literature there. DHL countered that the hallway is a work

area and that it had the right under its distribution policy, the

legality of which is not at issue, to prohibit employees from

leafletting there and to limit their leafletting to the facility’s

parking lot, cafeteria, and other non-work areas. The General

Counsel also argued that even if the hallway was a work area,

union distribution could not be prohibited because DHL had

permitted other types of distribution in that area. DHL

contended the other distributions were distinguishable and did

not compromise the Company’s right to enforce its

distribution policy, especially because security-related

considerations justified the prohibition.

On July 21, 2011, the ALJ found DHL violated Section

8(a)(1) by preventing off-duty employees from distributing

union literature in the hallway — which he described as a

“mixed-use” area of the facility. Specifically, the ALJ found

DHL “compromised the hallway area by permitting non-work

use of it.” JA 26-29. DHL raised several exceptions to the

decision and the Board issued its own decision and order on

December 21, 2011. Two Board members agreed with the

ALJ that the hallway constituted a “mixed-use” area in which

DHL could not prohibit distribution during non-work time.

The third, Member Hayes, concluded the hallway was a work

area but would have found a violation because, in his view,

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the Company’s policy discriminated against the union. The

Board ordered DHL to cease and desist from enforcing its no-

distribution rule and to notify employees that the rule will not

be enforced in the hallway.

On January 31, 2012, DHL petitioned for review in this

court; the Board filed a cross-application for enforcement.

II.

This court’s “role in reviewing an NLRB decision is

limited.” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348

(D.C. Cir. 2011). “[A] decision of the NLRB will be

overturned only if the Board’s factual findings are not

supported by substantial evidence, or the Board acted

arbitrarily or otherwise erred in applying established law to

the facts of the case.” Pirlott v. NLRB, 522 F.3d 423, 432

(D.C. Cir. 2008). Substantial evidence is defined as “such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938). Judicial review of

the Board’s credibility determinations is especially

deferential: such determinations must be sustained unless they

are “hopelessly incredible or self-contradictory,” Teamsters

Local 171 v. NLRB, 863 F.2d 946, 953 (D.C. Cir. 1988), or

“patently insupportable,” Exxel/Atmos, Inc. v. NLRB, 28 F.3d

1243, 1246 (D.C. Cir. 1994).

However, deference is not warranted where the Board

“fails to adequately explain its reasoning,” where the Board

leaves “critical gaps” in its reasoning, Point Park Univ. v.

NLRB, 457 F.3d 42, 49-50 (D.C. Cir. 2006), or where the

Board erred in applying law to facts, Perdue Farms, Inc.,

Cookin’ Good Div. v. NLRB, 144 F.3d 830, 834 (D.C. Cir.

1998). But the court may not overturn a Board’s order merely

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because the court “might have reached a different conclusion

had the court considered the issue de novo.” Reno Hilton

Resorts v. NLRB, 196 F.3d 1275, 1282 (D.C. Cir. 1999).

A. Jurisdiction

In its brief, DHL emphatically urges that the Board’s

“mixed-use” presumption is “unreasonable, irrational, and

arbitrary.” But the Board argues this rationality argument was

not presented below and so is not properly before the court.

We are, of course, precluded from considering any issue

raised by a party for the first time on appeal. See Pirlott v.

NLRB, 522 F.3d 423, 433 (D.C. Cir. 2008) (“It is . . . well

understood that a reviewing court must confine itself to the

grounds upon which the record discloses that the agency’s

action was based.”); see also 29 U.S.C. § 160(e) (“No

objection that has not been urged before the Board . . . shall

be considered by the court, unless the failure or neglect to

urge such objection shall be excused because of extraordinary

circumstances.”). The question then is whether DHL

challenged the rationality of the “mixed-use” presumption

below in a manner sufficient to put the Board on notice.

The ALJ’s opinion explicitly characterized the hallway as

a “mixed-use” area. The ALJ therefore applied the Board’s

longstanding “mixed-use” presumption: that an employer

cannot prohibit non-worktime distribution of union literature

in a mixed-use area, absent a showing of special

circumstances. In its exceptions to the ALJ’s findings, DHL

seemed to accept this mixed-use presumption. See, e.g., JA

53-54 (citing, without question, Board precedents holding that

a mixed-use area is “usually properly treated as a non-work

area for purposes of application of these principles”). Indeed,

DHL appeared to be challenging the application of this

9

presumption here — not its validity. See, e.g., JA 55 (“The

ALJ’s decision that the hallway is not a work area is flawed

because it fails to recognize the substantial evidence of work-

related activity that regularly occurs in the hallway.”). Only a

single exception and a single sentence in its appeal before the

Board arguably go to the validity of the presumption. See JA

35 (“Respondent excepts to the ALJ’s finding that a mixed-

use area must be treated the same as a non-work area for

purposes of application of a no distribution rule.”); JA 56

(“To conclude as a matter of law, as the ALJ did, that a non-

work area and a mixed-use area are equivalent would be to

abandon the Board’s responsibility to balance employees’

Section 7 rights against an employer’s property and

management rights and to accommodate each with as little

destruction of one as is consistent with the maintenance of the

other.”).

Our precedent 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. Parsippany Hotel Mgmt.

Co. v. NLRB, 99 F.3d 413, 417-18 (D.C. Cir. 1996)

(discussing NLRB v. Blake Constr., 663 F.2d 272, 283-84

(D.C. Cir. 1981)). Alternatively, when a petitioner

“specifically object[s] in its exceptions to the ALJ’s findings,”

then the issue may still be preserved for appeal even though

the petitioner “did not brief and argue the issue to the Board.”

Id. (discussing Davis Supermarkets, Inc. v. NLRB, 2 F.3d

1162 (D.C. Cir. 1993)). Here, we have neither a clear

statement in DHL’s exceptions nor a less-than-clear statement

that is fully explained in the brief. This case is most similar to

Highlands Hospital Corp. v. NLRB, in which we held the

company’s “single reference to the ‘excessive breadth’ of a

remedy with multiple parts [was] insufficient to satisfy

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section 10(e) because it failed to give the Board ‘adequate

notice’ of the argument it [sought] to advance on review.”

508 F.3d 28, 32-33 (D.C. Cir. 2007). We are therefore

precluded from considering any direct challenge to the

Board’s mixed-use presumption.

But a close reading of the Company’s arguments below

indicates that, while DHL seemed to accept the Board’s

general mixed-use presumption, the Company did challenge

the ALJ’s application of that presumption — claiming the

ALJ’s purported classification of any area not exclusively

devoted to work as “non-work” or “mixed-use” was a novel

misapplication of Board precedent to which the Board

acquiesced. For reasons explained more fully below, we

conclude the ALJ’s decision relating to mixed-use areas also

was controlled by long-settled precedent.

B. The Balancing of Rights

The Board and the employers are often not on the same

page. In this case, they might not even be reading from the

same book. For example, the Board, affirming the ALJ,

concludes the hallway is a “mixed use” area in which union

solicitation may not be prohibited. DHL, however, sees the

operative principle quite differently. DHL contends that the

working area of a business includes more than its production,

inventory, and active processing space. Every sizeable

business also requires administrative space where the

business’s payroll, human resources, accounting, security and

other support services are housed. Thus, DHL argues work

necessary to the operation of the business is being performed

in such spaces. And these areas remain as much under the

control of the employer as the active manufacturing or

processing facilities. In this case, the hallway is part of the

administrative portion of the facility, and — being integral to

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the Company’s commitment to maintain a secure facility — is

made available to both outsiders and employees for limited

purposes on a schedule established by management. These

purposes, DHL maintains, must be congruent with the

Company’s need to inform and provide benefits and

assistance to employees and to promote Company objectives.

Thus, APWU’s insistence that off-duty, pro-union employees

may use this space for organizing activity without the

company’s permission and without being relegated to a

particular time and place is viewed by the Company as an

unwarranted disruption of the discipline DHL attempts to

maintain in this administrative space and a violation of the

Company’s property rights.

DHL correctly identifies Republic Aviation Corp. v.

NLRB, 324 U.S. 793 (1945), as the seminal case articulating

the Board’s responsibility to balance employees’ right to self-

organize against employers’ right to maintain discipline in

their establishments. See id. at 803 n.10 (upholding the

Board’s presumption that it is “not within the province of an

employer to promulgate and enforce a rule prohibiting union

solicitation by an employee outside of working hours,

although on company property” absent special

circumstances). The Court in Republic Aviation recognized

neither right was unlimited, a principle that was refined in

NLRB v. Babcock & Wilcox Co.: “Accommodation between

[employee-organizational rights and employer-property

rights] must be obtained with as little destruction of one as is

consistent with the maintenance of the other.” 351 U.S. 105,

112 (1956).

Still, Congress entrusted the task of balancing between

these conflicting legitimate interests to the Board, not the

judiciary. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501

(1978). If the Board’s resolution is rational, consistent with

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the Act, and supported by substantial evidence, it must be

enforced. Id.

Unfortunately for DHL, there is less to the protection of

employer property rights and managerial prerogatives than the

language of accommodation seems to suggest. The locus of

the accommodation between Section 7 rights and private

property rights “may fall at different points along the

spectrum depending on the nature and strength of the

respective § 7 rights and private property rights asserted in

any given context.” Hudgens v. NLRB, 424 U.S. 507, 522

(1976). In practice, the locus of accommodation shifts on a

sliding scale. When property rights are ascendant, labor

organizers must show their need for access trumps the

employers’ right to exclude. When employee rights are at

their zenith, employers need to make an affirmative showing

that organizational activity cannot be accommodated without

negatively impacting productivity, discipline, security, or

similarly important interests. Employer rights are at their

strongest when dealing with non-employees. Employers can

generally prohibit solicitation and other labor organizing

activities by nonemployee union representatives. An

employer cannot be compelled to allow nonemployee

organizers onto his property. See Lechmere, Inc. v. NLRB,

502 U.S. 527, 534 (1992). “Nonemployee organizers cannot

claim even a limited right of access to a nonconsenting

employer’s property until ‘[a]fter the requisite need for access

to the employer’s property has been shown.’” Id. (quoting

Centr. Hardware Co. v. NLRB, 407 U.S. 539, 545 (1972)).

In contrast, the 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. See ITT Indus. v. NLRB,

251 F.3d 995, 1001 (D.C. Cir. 2001). When organizing

activity is undertaken by employees lawfully on the

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employer’s property, the proper balance is between their right

to organize and an employer’s managerial rights. See, e.g.,

Hudgens, 424 U.S. at 521 n.10 (1976) (“A wholly different

balance was struck when the organizational activity was

carried on by employees already rightfully on the employer’s

property, since the employer’s management interests rather

than his property interests were there involved.”); Babcock,

351 U.S. at 112-13 (“Here the Board failed to make a

distinction between rules of law applicable to employees and

those applicable to nonemployees. The distinction is one of

substance. 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.”). Indeed, the Court has

specifically held that “the Board is entitled to view the

intrusion by employees on the property rights of their

employer as quite limited in this context as long as the

employer’s management interests are adequately protected.”

Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978).

DHL argues that “[d]rawing such a presumption with

respect to mixed-use and incidental-work areas conflicts . . .

with the very distinction that the Supreme Court endorsed in

Republic Aviation — the one between working and non-

working areas.” Pet. Br. 29. However, as Babcock makes

clear, distinctions between employees and non-employees and

between property rights and managerial rights may

dramatically shift the balance. An employer may lawfully

prohibit employees from distributing union literature in work

areas during work time; however, a rule that extends the

prohibition to nonworking areas during nonwork time is

presumptively invalid. See NLRB v. Transcon Lines, 599

F.2d 719, 722 (5th Cir. 1979). The Board still adequately

protects the employer’s management interests by maintaining

the special circumstance exception available to employers for

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non-work areas. 1 DHL’s argument that the Board was

required to conduct a balancing of its property interests

against its employees’ organizational interests is inapt. See

Hudgens, 424 U.S. at 521 n.10. The company ignores the

differences between employees and strangers and fails to

distinguish property rights from managerial rights. DHL thus

misapprehends the critical point: while the 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.”

Lechmere, Inc., 502 U.S. at 533.

C. Deference

In an attempt to escape the high level of deference

accorded to agency action, DHL also claims the Board’s

mixed-use presumption is “arbitrary” and “conflicts with

Supreme Court precedent.” As discussed above, these

arguments are likely precluded because DHL failed to

squarely raise them before the Board. But to the extent DHL

1

For example, in Beth Israel Hospital v. NLRB, the Supreme Court

considered whether two industry-specific presumptions put forth by the

Board were rational. The Board found that rules prohibiting solicitation in

the dining areas of public restaurants were presumptively lawful “because

solicitation has the tendency to upset patrons,” while also holding that

prohibiting solicitation in the cafeteria of a hospital was unlawful “absent

evidence that nonemployee patrons would be upset.” Beth Israel, 437

U.S. at 505-06. The Court approvingly noted that “the Board [had]

concluded that these rules struck the appropriate balance between

organizational and employer rights in the particular industry to which each

is applicable.” Id. at 506. Similarly, in this context, the Board has

concluded that mixed-use areas should not be subject to prohibitions on

distribution unless the employer offers evidence of special circumstances.

This conclusion does not conflict with Republic Aviation or any other

Supreme Court precedent.

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is challenging the “heightened” presumption purportedly

employed by the ALJ — that any area not “exclusively”

devoted to work must be considered a mixed-use area — we

consider and reject that challenge below.

Because Congress has given the Board such broad

discretion, the Court must “uphold [the] Board rule as long as

it is rational and consistent with the Act, even if we would

have formulated a different rule had we sat on the Board.”

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787

(1990) (citation omitted). The 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. See,

e.g., United Parcel Serv., 327 N.L.R.B. 317 (1998), aff’d, 228

F.3d 772 (6th Cir. 2000); Transcon Lines, 235 N.L.R.B. 1163,

1165 (1978), aff’d, 599 F.2d 719 (5th Cir. 1979); Rockingham

Sleepwear, 188 N.L.R.B. 698, 701 (1971). Moreover, the

Board has adequately explained the (rather obvious) reasons

for applying the same presumption to mixed-use areas as to

non-work areas: “[i]t is the main production area of an

employer’s facility where the hazards of littering and

maintaining order are paramount over employee distribution

of literature” such that employee distribution in these mixed-

use areas “does not infringe” on the employer’s interests in

“conducting an orderly nonhazardous workplace.” Found.

Coal West, Inc., 352 N.L.R.B. 147, 150 (2008); cf. Patio

Foods v. NLRB, 415 F.2d 1001, 1003 (5th Cir. 1969) (“[T]he

implicit holding of these cases is that an employer’s

legitimate interest in keeping his employees’ work stations

free of the disruptive influence of handbilling justifies the

prohibition of union literature distribution in work areas

where employees are, in fact, working.”).

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This presumption necessarily incorporates 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. Here,

the ALJ and the Board applied this longstanding presumption

to DHL’s hallway, without modification. Although DHL

fixates on the ALJ’s finding that “the hallway is not

exclusively a work area,” JA 96, neither the ALJ nor the

Board has heightened the standard for employers — a

miniscule amount of nonwork will not now convert a work

area into a “mixed use” area. An examination of the ALJ

opinion, adopted by the Board, shows the ALJ carefully

considered the type, duration, and frequency of work and

nonwork occurring in the hallway prior to concluding that it

should be considered a “mixed-use” area. See JA 96-98.

Although DHL is alarmed by the “exclusivity” language

employed by the ALJ, the record demonstrates that he was

simply responding to the Company’s argument that the

hallway was a work area by stating all the reasons he could

not find it to be exclusively so. See id. This analysis

ultimately amounts to a run-of-the-mill application of the

Board’s traditional mixed-use framework.

While DHL may not agree with the underlying

presumption, “it is to the Board that Congress entrusted the

task of applying the Act’s general prohibitory language in

light of the infinite combinations of events which might be

charged as violative of its terms.” Beth Israel, 437 U.S. at

500-01. Moreover, the Board’s mixed-use presumption is

quite reasonable: it provides predictability for employers and

employees, it includes a “special circumstances” exception for

employers, and DHL’s only proffered alternative is treating

mixed-use areas, where very little work occurs, as equivalent

to work areas — an outcome that “overcompensate[s] its

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goals and give[s] too little weight to employee organizational

interests.” Id. at 501.

D. Substantial Evidence

Having failed on its broader challenge to the mixed-use

presumption, DHL still contends that the Board’s finding that

the hallway constituted a “mixed-use” area was not supported

by substantial evidence. This court “must uphold the ALJ’s

findings of fact if substantial evidence exists in the record

when viewed as a whole, to support them.” United Parcel

Serv., 228 F.3d at 776; see also Universal Camera Corp., 340

U.S. 474, 477 (1951). “Evidence is considered substantial if

it is adequate, in a reasonable mind, to uphold the decision.”

Roadway Express, Inc. v. NLRB, 831 F.2d 1285, 1289 (6th

Cir. 1987). Here, both the ALJ’s findings and the Board’s

decision were supported by substantial evidence.

The Board has “long held that merely because a work

function or functions occur in a given space does not render

that space a ‘work area’ within the meaning of the Board’s

rules regarding distribution. Rather, the Board has looked at

the quality and quantity of work, which occurs in the area at

issue, and examine[d] whether the work is more than de

minimus and whether it involves production.” Brockton

Hospital, 333 N.L.R.B 1367, 1375 (2001). To constitute a

work area, “the area must be integral, not merely incidental,

to the employer’s main function.” Meijer, Inc., 344 N.L.R.B.

916, 923 (2005) (emphasis added); see also U.S. Steel Corp.,

223 N.L.R.B. 1246, 1247-48 (1976) (“Respondent’s

contention that all its property is a work area is a contention

that can be asserted by every company, thus effectively

destroying the right of employees to distribute literature.

Some work tasks, whether it be cleaning up, maintenance, or

18

other incidental work, are performed at some time in almost

every area of every company.”).

Board precedent on this issue is instructive: for example,

in Santa Fe Hotel, the Board identified “the main function of

the Respondent’s hotel-casino [as] to lodge people and permit

them to gamble.” Santa Fe Hotel, 331 N.L.R.B. 723, 723

(2000). Thus, the work activity — “security, maintenance,

and gardening” — asserted by Respondent to occur at the

facility entrance was merely incidental to its main function.

See id. Other cases have followed the same line of analysis.

In Saisa Motor Freight, the Board designated a break room as

a “mixed-use area” because it was an area “where employees

may take breaks and eat” but also “where line haul and city

drivers receive[d] papers from dispatchers and turn[ed] in

documents at the end of a trip.” 333 N.L.R.B. 929 (2001); see

also Transcon Lines, 599 F.2d at 721 (holding the Board’s

mixed-use designation to be supported by substantial

evidence because the drivers’ room was an area where

employees could relax, drink coffee or eat snacks, and

converse freely even though some work was occasionally

conducted there); United Parcel Serv., 228 F.3d at 777

(upholding designation of check-in area as “mixed-use”

because that area “transformed into a congregation point for

the drivers to drink coffee, read magazines and newspapers,

and converse before their morning shift”).

The Board’s analysis of another hallway in Foundation

Coal is particularly illuminating. 2 As in this case, the hallway

there served as a place for employees to congregate, to view

the bulletin boards, and to use communal goods like the

2

Only two Board members decided Foundation Coal; the Board therefore

found it unnecessary to rely on that precedent when deciding this case.

DHL Express, Inc., 357 N.L.R.B. No. 145 at 1 n.1 (2011). Regardless, the

logic of Foundation Coal is instructive here.

19

company microwave and coffeemaker. See 352 N.L.R.B. at

148 (“There is no dispute that employees use the hallway to

socialize with coworkers before, during, and after work.”).

Some work also took place in the hallway, namely dispatchers

relaying new assignments to employees and human resource

employees discussing safety and other issues with employees.

Id. at 148-49. But the Board identified the employer’s main

function as “the digging, removal, sorting, and distribution of

coal” and noted that “[t]his work is done primarily in the Pit

and loading areas of Respondent’s . . . mine.” Id. at 150.

Because of this, the Board concluded that “[a]t best the

hallway is a mixed use area where both socializing and

nonproduction work, incidental to Respondent’s main

function, the production of coal, take place. Employee

distribution of written materials in the hallway does not

infringe on Respondent’s interests in conducting an orderly

nonhazardous workplace for the mining of coal.” Id.

So too with DHL’s hallway: there is no question

employees often congregate and socialize in the hallway. The

hallway features televisions, where employees can watch for

weather and company updates, computer stations for checking

benefits information and personal email, and areas for

employees to use their personal cellphones. Moreover, DHL

has allowed the hallway to be used for various fairs, charity

drives, raffles, and the sale of merchandise. The main

function of DHL is the sorting and transfer of packages; this

activity takes place in the sorting facility — not the hallway.

Even though incidental work (like the carrying of packages

and company tours) occasionally occurs in the hallway, the

ALJ and the Board were justified in designating it as a “mixed

use” area.

None of the cases relied on by DHL undercut this

determination; “[t]he facts in those cases differ substantially

20

from the facts at issue here . . . . Those cases dealt with areas

still retaining the characteristics of a work area but where

non-working employees happened to be found . . . .” United

Parcel Serv., 228 F.3d at 777 (discussing the same cases DHL

relies on in its briefing). DHL’s contention that it provides

alternative areas for organizational activities is also irrelevant.

See id. at 778 (“[T]he NLRB has expressly found that a

company may not prohibit the distribution of union literature

in a mixed-use area, even though other non-work areas

existed in the building”); Beth Israel Hosp., 437 U.S. at 505

(“[O]utside of the health-care context, the availability of

alternative means of communication is not, with respect to

employee organizational activity, a necessary inquiry . . . .”).

The Board’s mixed-use determination is therefore supported

by substantial evidence on the record as a whole.

E. Special Circumstances

Even when the Board finds an employer’s prohibition is

invalid, it is still “necessary to examine whether there are

‘special circumstances’ present which rebut the presumption

of invalidity.” U.S. Steel Corp., 223 N.L.R.B. 1246, 1248

(1976). “Special circumstances” in this context means

“problems associated with distribution which go beyond the

normal problems of litter and production efficiency which the

Board took into account in that case when it granted

employers the additional limitation of banning distributions

from work areas.” Id.

DHL’s facility is located on the grounds of an airport,

and so the company must comply with several sets of federal

safety and security regulations. Its security checkpoint for

employees entering and exiting the building is located at one

end of the hallway. DHL thus asserts that its security and

safety concerns constitute “special circumstances” sufficient

21

to support a prohibition on the distribution of union literature

in the hallway.

DHL need “show only a likelihood of, not actual,

disruption or disturbance.” Brockton Hosp. v. NLRB, 294

F.3d 100, 104 (D.C. Cir. 2002). And at least one court has

previously admonished the Board for failing to give due

consideration to an employer’s safety and security concerns.

In McDonnell Douglas Corp., the Eighth Circuit held that

“when . . . an employer makes a credible showing of special

justifying circumstances, . . . the Board in weighing that

evidence must responsibly and in a meaningful way consider

the importance of the proffered justification.” 472 F.2d 539,

545 (8th Cir. 1973). The employer in that case was “engaged

in highly sophisticated operations in manufacturing aircraft,

missiles, space vehicles, and military airplanes,” and the court

found that the Board gave too little weight to the employer’s

“security problems.” Id. at 545-47.

The special circumstances question is a closer call here

than whether the hallway is a mixed-use area. But the ALJ

evaluated the specific argument put forward by DHL and

concluded that, “[w]ith respect to security concerns, [a

company director] testified that the employees did not break

any Transportation Security Administration (TSA) policies or

guidelines when distributing union literature in the hallway

area, and [the human resource manager] testified that

employees were not hindered in there [sic] ingress or egress

from the facility.” JA 27. The security concerns at DHL,

while arguably above the norm, do not rise to the level of

those in McDonnell Douglas where the employer was

engaged in classified military work. Moreover, DHL was

unable to point to any instance in which the distribution of

union literature had in fact clogged the hallways, endangered

other employees, or violated any security regulations. At oral

22

argument, DHL’s counsel seemed somewhat ambivalent on

this point. The Company could offer no specific evidence of

disruption, instead arguing that its description of the security

challenges should have been sufficient. But the Board has

consistently held that the employer must point to “some

specific evidence of unusual circumstances.” Meijer, 436

F.3d at 545. Also, DHL’s own contention that “[p]ermitting

activities in the hallway that require employees to stop, even

for a moment, [will] impede the progress of the throng of

employees coming down the hallway, causing the hallway to

become congested and creating the potential for a back-up,”

JA 40, is undermined by its allowance of so many other

activities in the hallway — such as the use of cellphones and

computers, socialization of employees, and even solicitation

by a different union — none of which appear to have caused

any safety or security problems.

Given the absence of evidence that discipline, production,

or security had been adversely affected, the Board’s

determination was supported by substantial evidence on the

record as a whole.

F. Burden of Proof

Finally, DHL contends the Board improperly saddled it

with the burden of proving that one or more on-duty

employees received union literature, when the General

Counsel bears the burden of proof with respect to employees

being off-duty. As the Board held in Stoddard-Quirk, an

unfair labor practice occurs when an employer prevents

employees from distributing union literature in non-work (or

mixed-use) areas during non-work time. See Stoddard-Quirk

Mfg. Co., 138 N.L.R.B. 615 (1962). And it is, of course, the

General Counsel who “carries the burden of proving the

23

elements of an unfair labor practice.” NLRB v. Transp. Mgmt.

Corp., 462 U.S. 393, 401 (1983).

Here, both sides agree the employees distributing the

literature were off-duty. JA 80-81, 101. And no evidence

was adduced that these employees distributed literature to

anyone who was on duty. See id. Board precedent, including

court-approved precedent, does not seem to require the

General Counsel to prove each and every employee who

received the literature was off-duty. See Transcon Lines, 599

F.2d at 722 (“The employer urges that the Board’s proof

failed because it was not shown that at the moment Brown

handed out literature to other drivers . . . he was on non-work

time, and that the precise moment each other driver was

handed a piece of literature . . . he was in non-work status as

well. The employer’s argument is specious with respect to

Brown . . . [and] with respect to drivers who were handed

pieces of literature, the precise nicety of proof hypothesized

by the employer was not required.”).

Obviously the employer is in a much better position to

demonstrate that on-duty employees received the literature,

and the Board has consistently looked to see whether any such

evidence was adduced. See, e.g., Oak Apparel, Inc., 218

N.L.R.B. 701, 702 n.7 (1975) (“In any event, there is no

evidence that leaflets were distributed to any employees who

were working . . . .”). Moreover, even if some on-duty

employees received the distribution, some off-duty employees

undoubtedly were prevented from receiving this literature

because DHL repeatedly curtailed the distribution. Board

precedent and common sense dictate that the General Counsel

was not required to prove that every single employee who

24

received APWU’s literature was off-duty. 3 Rather, DHL had

the option to demonstrate the contrary and failed to do so.

Under the circumstances, we are satisfied that the General

Counsel proved the unfair labor practice, regardless of

whether some employees who received the distribution were

on the clock.

Conclusion

Substantial evidence exists on this record to support the

Board’s findings of fact and because we find no errors of law

in the Board’s decision, we deny the petition for review and

grant the Board’s application for enforcement.

3

While not on precisely this point, the Sixth Circuit’s discussion in United

Parcel Service is instructive: “UPS contends that the NLRB impermissibly

shifted the burden of proof to UPS on this issue, since no UPS supervisor

admitted to seeing the drivers pass around newspapers or other reading

materials. And, several managers testified that they threw away any

reading materials if they happened to see them in the check-in area after

the drivers had left. The ALJ pointed out, though, that there was also no

evidence that UPS ‘posted any warning notices, gave verbal warnings, or

otherwise informed employees that the newspapers and magazines were

being discarded pursuant to the no-distribution rule.’ The ALJ inferred

that the supervisors knew about the sharing of reading materials in the area

since there was evidence that the supervisors routinely mingled with

drivers while such distributions took place. Thus, this is not a matter of

shifting the burden of proof. It is merely a matter of whether the Court

finds the ALJ’s inference to be reasonable.” 228 F.3d at 778 (emphasis

added).