The End of Common Sense? NLRB Decision on Off-Duty Access Leaves Employers in a Bind

by Constangy, Brooks, Smith & Prophete, LLP

Continuing its recent line of decisions that will cause many employers to restrict, rather than expand, opportunities for off-duty employees to access employers' facilities, a panel of the Board in Marriott International, Inc., recently decided that a hotel chain's off-duty employee access rule was invalid and violated Section 8(a)(1) of the National Labor Relations Act. The Board panel majority, consisting of Chairman Mark Gaston Pearce and Member Sharon Block (with Member Brian Hayes dissenting), found the rule invalid because it gave management the discretion to grant exceptions to its general rule that off-duty employees were not to come back onto the hotel premises. Had the rule prohibited access without giving management the discretion to grant exceptions, the rule apparently would have been valid.

The No-Access Rule

The hotel's off-duty access rule originally provided as follows:

Associates are not permitted in the interior areas of the hotel more than [15] minutes before or after their work shift. 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…This policy does not apply to parking areas or other outside nonworking areas.

The NLRB Decision

Relying primarily on the Board's ruling in the 1976 case of Tri-County Medical Center, the Board panel majority agreed with the decision of an administrative law judge finding the rule invalid. Under Tri-County Medical Center, a no-access rule is valid only if it (1) limits access solely with respect to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the facility for any purpose and not just to those employees engaging in union activity. According to Pearce and Block, Marriott's rule did not satisfy the third requirement because it was "not a uniform prohibition of access." Instead, the rule prohibited off-duty employee access "except in certain unspecified circumstances subject to a manager's prior approval, giving the employer broad -- indeed unlimited -- discretion 'to decide when and why employees may access the facility.'" (Emphasis in original.)

According to the majority, the rule essentially compelled "reasonable employees to believe that Section 7 activity is prohibited without management permission." The Board panel commented that "employees would reasonably conclude that they were required [by the rule] to disclose to management the nature of the activity for which they sought access – a compelled disclosure that would certainly tend to chill the exercise of Section 7 rights."

The hotel argued unsuccessfully that the rule was valid because it applied to all off-duty access-seekers and that employees were free to ask for clarification if they were concerned about restrictions on Section 7 activity.

Member Hayes, dissenting, contended that the third requirement of Tri-County Medical Center was meant only to prohibit discrimination against Section 7 activity, not require blanket prohibitions on off-duty access. Hayes persuasively noted that the only no-access rule that the majority would "surely find valid" is one that "would prohibit access uniformly." Although the majority posited that exceptions to a uniform prohibition might be valid under some narrow "special circumstances," Hayes said, the majority approach remained illusory and of no practical benefit to employers seeking guidance in developing lawful rules.

So, Now What?

The Marriott International decision continues the ongoing effort of the Board, with its current membership, to expand open access to employer property for union organizing activity. Although the decision seems to support a complete ban on access, such a ban would be impractical if not impossible. A "zero-tolerance" policy would mean that off-duty employees would be prohibited from such activities as coming back into a facility to pick up medications or other personal property left inside, picking up paychecks or other work-related documents, or coming back inside the facility for employer-sponsored events such as retirement, anniversary or birthday events.

Employers should review their policies and rules to understand their potential ramifications, and consider modifying their rules to adjust to the current Board's positions. No-access rules have a chance of withstanding Board scrutiny if they are adopted for legitimate reasons before any union activity and if they are uniformly enforced. If an employer's rule is found to be invalid, then any discipline or discharge pursuant to the rule could be an unfair labor practice and result in back pay liability. Moreover, if an employer wins a representation or decertification election while an invalid rule is in place, the rule could be ground for setting the election aside. The Board has left employers with tough choices, and common-sense employee access may very well be lost.


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.

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