Employers essentially appear to be faced with choosing between two impractical policies: Completely bar off-duty workers from accessing the employers' facilities for any reason or allow unfettered access.

The National Labor Relations Board (the "Board" or NLRB) ruled on May 1, 2014, that an employer violated Section 8(a)(1) of the National Labor Relations Act (the "Act") by maintaining a work rule prohibiting employees from remaining on the employer's premises after the employees' shift "unless previously authorized by" their supervisor.

The Board held that this rule vested supervisors with broad and unlimited discretion to decide when and why off-duty employees would be granted access to the employer's facility, which would tend to "chill" employees in the exercise of their Section 7 rights.

The remedy in this case was that the employer had to rescind the unlawful rule. However, the real significance of cases such as this (and danger for employers) is that, in a union organizing situation, if an employer discharges employees for violating an unlawful rule or policy, the NLRB generally will institute expedited legal proceedings that seek to have the employer immediately reinstate those terminated employees to their positions. When that happens, the union that is involved will have gained an advantage in its attempt to organize the employees. The union would likely immediately publicize to employees that it was responsible for having the terminated employees reinstated, and for striking down a rule or policy of the employer. Such a result could result in a significant setback to an employer who is attempting to resist a union organizing drive.

Background on Solicitation, Distribution and No-Access Rules

The Board has long held that employees have the right to engage in such union activities as soliciting other employees to sign union authorization cards. Generally, however, the rules can be somewhat confusing. For example, the Board has held that employers can prohibit employees from distributing union literature during working time and in working areas. See, e.g., Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). However, the Board considers that an employee's soliciting other employees to sign union authorization cards does not involve the distribution of literature and so it has held that an employer cannot ban employee solicitation on company premises during non-working time, absent special circumstances. See, e.g., Guard Publ'g Co., 351 NLRB No. 70 (2007) [construing Republic Aviation v. NLRB, 324 U.S. 793 (1945)].

In addition, the Board has held, with regard to the ability of off-duty employees to engage in union organizing on the employer's premises, that a rule restricting off-duty employees' access is valid only if it: (1) limits access solely to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity. See Tri-County Medical Center, 222 NLRB 1089 (1976).

More recently, in Saint John's Health Center, 357 NLRB No. 170 (2011), the Board ruled that a healthcare provider violated the Act by implementing a rule that limited off-duty employee access to the workplace, except for specific purposes. The rule at issue prohibited off-duty employees' access to most of the interior of the health center's building but made an exception to the general prohibition by permitting access "to attend Health center sponsored events, such as retirement parties and baby showers." The Board interpreted this policy to mean "[i]n effect, the Respondent is telling its employees, you may not enter the premises after your shift except when we say you can."

Similarly, in Sodexo America LLC, 358 NLRB No. 79 (2012), the Board invalidated a hospital's no-access policy that permitted off-duty employees to enter the hospital only if they were visiting patients, were patients themselves or were conducting "hospital-related business." According to the Board, the rule provided management with the same unfettered discretion to permit off-duty employees to enter the employer’s facility as in Saint John's. Thus, applying both Saint John's and Tri-County Medical Center, the Board held that the hospital's rule violated the Act because it did not "uniformly prohibit access to off-duty employees seeking entry to the property for any purpose."

The Board's decision in J.W. Marriott, 359 NLRB No. 8 (2012), made it even more challenging for employers to control off-duty employee access to the workplace. There, the Board found unlawful a rule stating as follows:

"Occasionally, circumstances may arise when you are permitted to return to interior areas of the hotel after your work shift is over or on your days off. On these occasions, you must obtain prior approval from your manager. Failure to obtain prior approval may be considered a violation of Company policy and may result in disciplinary action. This policy does not apply to parking areas or other outside nonworking areas."

The Board explained that the no-access rule "permits access to the hotel for unspecified 'circumstances' with managerial approval, and so it 'would be understood by a reasonable employee as prohibiting activity protected under Section 7 of the Act without prior management approval.'"

American Baptist Decision

The rule at issue in American Baptist prohibited employees from remaining on the premises after their shift "unless previously authorized by" their supervisor.

According to the Board, the vice in such a rule is that it gives the employer "broad—indeed, unlimited—discretion 'to decide when and why employees may access the facility.'" As such, the Board concluded that the employer's policy was unlawful and in violation of the Tri-County Medical standard.

What This Means for Employers

Following Saint John's, Sodexo, J.W. Marriott and now American Baptist, employers that seek to prohibit access by off-duty employees to the workplace, but that allow for any exception to that policy, risk having the policy found unlawful under the Act. In addition, as stated above, an employer also faces the possibility that the NLRB and a court will order the employer to rescind the unlawful rule, and to revoke any discipline that the employer imposed upon employees for having violated the unlawful rule.

Employers essentially appear to be faced with choosing between two impractical policies: Completely bar off-duty workers from accessing the employers' facilities for any reason or allow unfettered access. Neither option is likely to be particularly appealing.

As we have previously noted in prior Alerts, employers should: Review the wording of each of their current and contemplated policies; evaluate the significance of the policy to the employer; and consider making appropriate business judgments about how to proceed in light of the respective benefits and legal risks associated with that policy. This same cost-benefit analysis can be applied with respect to an employer's contemplated discipline, as well.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.