Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful

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[author: Mark Theodore]

Last year the NLRB's order of the day was sweeping change. That brought us the employee rights poster, the ambush election rules, and micro unions. The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism. We saw recently how the current Board expanded rules from normal campaign context to outside protest activities. This week the Board expanded the existing rules for evaluating an employer's policy regulating off-duty employee access to the premises.

In Sodexo America LLC, 358 NLRB No. 79 (July 3, 2012).pdf, a 2-1 decision, the Board ruled that a hospital's off-duty access violated the Act. The case did not involve any employees of Sodexo but of the University of Southern California Hospital. The hospital's rule stated: "Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the hospital except to visit a patient, receive medical treatment or to conduct hospital-related business." The policy defined hospital related business as "the employee's normal duties or duties as specifically directed by management."  

Some off-duty employees of the hospital entered the premises for reasons other than visiting patients or receiving medical care and were disciplined. The Administrative Law Judge concluded the rule was valid. The only evidence in the record was that under the "hospital-related business" exception was that "employees are always under supervision of the Hospital" making it "not really an exception at all and simply amounts to a definition of on-duty employees." The only evidence the Acting General Counsel presented to the contrary was that an off-duty employee occasionally entered the hospital for purposes of picking up his paycheck. In other words, there was no evidence that the employer had allowed off-duty employees to enter the premises for reasons other than work. Indeed, the ALJ found the Hospital had "enforced the rule by disciplining employees who gained access to the interior of the hospital in violation of the rule, including. . off-duty employees who entered the Hospital and engaged in union activities."

The Acting General Counsel appealed asserting all aspects of the rule were invalid

The Board reversed the ALJ's finding in part and found that the "hospital-business" exception of the rule violated the Act.

The Board purported to base its decision on Tri-County Medical Center, Inc., 222 NLRB 1089, 1089 (1976) which set forth the standard for evaluating rules for off-duty employee access: "We conclude, in order to effectuate the policies of the Act, that such a rule is valid only if it (1) limits access solely with respect to interior 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 those employees engaged in union activity." The Board in Sodexo found that the third prong of this test was violated because it allowed management "unfettered discretion to decide when and why employees may enter the facility 'as specifically directed by management.'"  

The ruling thus relied exclusively on the possibility management might allow off-duty employees access when the record evidence demonstrated that in reality management never allowed employees who were not working to enter its premises, except for minor things like picking up a paycheck (which, is understandable and work-related; not permission to use the employer's facility for other purposes). This is evident by the fact the Board remanded the issue of whether the discipline implicated Section 7. The Board swept aside the ALJ's finding of the the hospital's previous enforcement of the rule, even when employees were engaged in union activity stating, "there is no evidence in the record to support this finding." Respectfully, the ALJ did not just make up this finding; rather, it was likely supported by testimony of the hospital officials. The majority's ruling raised the standard of proof required by te employer while giving the Acting General Counsel a pass. The ruling allows the Acting General Counsel and the charging party another attempt prove what they obviously did not prove during the trial, yet does not afford the employer the same opportunity to re-do the entire case.

Indeed, it seems the remand is fairly results oriented as it issued narrow "instructions to reopen the record and determine whether activity of the four-named employees implicated concerns underlying Section 7. If so, the discipline violated Section 8(a)(1) of the Act." The employer it does not seem gets an opportunity to show consistent enforcement of its policy.

Member Hayes dissented, stating:

[T]he end result of the majority's holding is that a hospital cannot maintain a valid off-duty access rule if it also allows employees to engage in innocuous activities such as picking up paychecks, completing employment-related paperwork or filling out  patient information.  This was undoubtedly not a scenario intended by the Board in Tri-County.

At the end of the day the Board ruled that an employer can prohibit off-duty employee access as long as it prohibits all access for whatever reason. So, employees who do not receive direct deposit may have to just wait until their next regular workday to pick up the paycheck.