In J.W. Marriott Los Angeles at L.A Live, 359 NLRB No. 8 (Sept. 29, 2012), the NLRB again has ruled against an employer’s off-duty employee access rule. A hotel in Los Angeles maintained a rule prohibiting employees from accessing the interior areas of the hotel more than 15 minutes before or after their scheduled shift. The policy further acknowledged there may be exceptions, but required that any exceptions can only arise with prior approval from management, and that failure to obtain such prior approval may result in discipline. The policy expressly applied only to interior areas of the hotel and not to parking areas or other outside non-working areas. In analyzing the rule, the NLRB applied its traditional test to such off-duty access rules, from its decision in Tri-County Medical Center, 222 NLRB 1089 (1976). Under Tri-County, a rule restricting off-duty employee access is valid only if: (1) it limits access solely with respect to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; (3) applies to off-duty employees seeking access to the facility for any purpose and not just those employees engaging in union activity.
The Board had recently invalidated off-duty access rules for failing the third prong of the Tri-County test by creating exceptions. In Saint John’s Health Center, 357 NLRB No. 170 (2011) the Board invalidated a rule that barred access except for “employer-sponsored” events, and in Sodexo America LLC, 358 NLRB No. 79 (2012), the Board invalidated a hospital’s off-duty access prohibition that made an exception for “hospital-related business.” The Board found fault with the employer’s rule here for the same reason; it was not a blanket prohibition but was instead subject to exceptions, made purely in the employer’s discretion. The Board also found that the rule would “reasonably tend to chill” Section 7 activity, due to the pre-approval condition which, according to the Board, could give management license to deny access on the basis of Section 7 activities. The pre-approval requirement that employees state the purpose of their off-duty visit likewise would tend to chill union activities, according to the Board.
The Board found it irrelevant that the record lacked any evidence that the hotel was motivated by anti-union animus or had ever enforced the access provision in that manner, and that employees could obtain a (non-discriminatory) explanation of the rule through the employer’s “open door” policy – noting that “employees have no obligation to seek further explanation of the rule from Respondent through its open door policy.”
The Board also invalidated a “hotel use” policy that advised employees “if you wish to use the guest facilities during non-working hours, you need to obtain prior approval from your manager.” The Board found the term “guest facilities” unlawfully overbroad in that it could encompass parking lots and other outside areas. The Board essentially faulted the employer for this ambiguity, contrasting it with the specificity of the access policies, which clearly defined “interior areas.” The prior approval language created the same chilling problems as that contained in the access provision.
Member Hayes dissented, arguing that an employer ought to be able to invoke “common sense” exceptions to off-duty access rules, and that the majority’s all-or-nothing reading of the third prong of Tri-County leads to absurd results, where, for example, an employee who forgot medication at work would be barred from returning to retrieve it, lest the employer lose its uniform prohibition on off-duty access. Member Hayes also noted that the Board’s decision in Lafayette Park appears to sanction limited exceptions to off-duty access prohibitions and so could not be reconciled with the majority’s rule.
The Board is continuing to scrutinize employer rules more than ever and is likely to find a chilling effect on Section 7 activity where a rule is ambiguous. Specifically with respect to off-duty access, JW Marriott continues a line of Board cases invalidating such rules due to “exceptions.” While it is tempting for employers to avoid absolutes and retain discretion to acknowledge special circumstances, such exceptions are not permissible under the Board’s current Tri-County analysis. In addition, language in off-duty access or use policies that is ambiguous as to the scope of property covered will be construed as applying to non-work areas in which employee union activities cannot lawfully be curtailed.