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

by Proskauer - Labor Relations

[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.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - Labor Relations | Attorney Advertising

Written by:

Proskauer - Labor Relations

Proskauer - Labor Relations on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.