The National Labor Relations Board (Board) continues to make life much more inhospitable for the hospitality industry. Recently, the Board issued two decisions that significantly affect hospitality employers. Specifically, the recent decisions reflect the increased scrutiny employers will experience regarding their employee handbooks and the property access rights of a contractor’s off-duty employees.

Employers Beware: The Mere Maintenance of Handbook Rules May Result in Elections Being Set Aside

In a recent 2-1 decision, the Board set aside a decertification election based on the employer’s mere maintenance of objectionable handbook rules even though the employer had not enforced the rules during the critical period prior to the election. In Jurys Boston Hotel, 356 N.L.R.B. No. 114 (2011), the hotel’s employees voted to decertify the Union by one vote. The Union had filed unfair labor practice charges before the election and raised objections after alleging that Jurys had violated Section 8(a)(1) of the National Labor Relations Act (NLRA) and interfered with the election by maintaining seven allegedly overbroad handbook rules.

Of the seven rules at issue, the Board’s majority agreed with the hearing officer and found that three rules involving employee solicitation, employee loitering, and the wearing of buttons and emblems violated Section 8(a)(1) as they could have been reasonably construed by employees as precluding them from communicating about protected and concerted activity in their workplace. The Board relied upon longstanding precedent such as Pacific Beach Hotel, 342 NLRB 372 (2004); Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004); P.S.K. Supermarkets, 349 NLRB 34 (2007). While Board Chairman Liebman found it unnecessary to address whether the remaining employee handbook rules were objectionable, Board Member Pearce noted that he believed three other rules regarding Jurys’ grievance procedure, internal investigations, and leaving work without authorization were objectionable.

Despite the presence of these overbroad rules, the Hotel had not applied them in a manner to interfere with or coerce the employees’ rights. Indeed: (i) the Union had received a copy of the handbook two years prior to its complaint; (ii) no employees were hired or given the handbook during the “critical period” prior to the decertification election; (iii) there was no evidence that the hotel’s rules on solicitation, distribution, loitering, and clothing standards were enforced against the employees during the “critical period;” and (iv) there was no evidence that any employees were actually deterred from engaging in campaign activity. In addition, after the Union filed its unfair labor practice charge and three weeks before the election, Jurys issued a memorandum to its employees stating that its handbook rule regarding the “Grooming Standards” policy was “potentially ambiguous,” that the rules were not intended to “interfere with your NLRA rights,” and that the “second to last paragraph of [the Grooming Standards] policy, which addresses the wearing of emblems, buttons and badges is deleted.”

Notwithstanding this evidence, the Board held that the mere maintenance of the objectionable rules, combined with the fact that a single vote decided the election and evidence of a potential chilling effect of employees was sufficient to set aside the decertification vote. Distinguishing the present facts from prior precedent, the Board held that the Union had no general requirement to show that the employee handbook rules were enforced or that they actually deterred employees from exercising their rights under the NLRA. The dissenter, Board Member Hayes, argued that the decertification election should not have been set aside, as the Union had failed to satisfy its burden of showing that the rules’ maintenance during the election period had a reasonable tendency to affect the outcome of the election.

Contractors’ Off-Duty Employees Have Rights to Access A Property Owner’s Premises for Organizing Purposes

Another recent Board decision has greatly increased the access rights of a contractor’s off-duty employees to engage in organizing activities on a property owner’s premises. In New York New York, 356 N.L.R.B. No. 119 (2011), the Las Vegas hotel and casino (NYNY) had contracted with a company to operate its restaurants and food court. On three separate occasions, the contractor’s off-duty employees distributed handbills to NYNY’s casino, hotel, and restaurant customers as a part of the contract employees’ organizing campaign. The handbilling occurred once on the covered sidewalk and driveway outside NYNY’s main entrance, and twice inside the hotel itself in front of the two contractor-operated restaurants. Each time, the contractor’s employees were issued police citations and escorted off NYNY’s premises. The employees brought unfair labor practice charges against NYNY for allegedly interfering with their right to engage in protected and concerted activity.

Historically, the Board has long recognized that employees have certain access rights to an employer’s premises to engage in protected concerted activity. For non-employee union organizers, the Board similarly has recognized that, absent a showing that the non-employee union organizers lacked reasonable alternative means of communicating with their intended audience, an employer who acted in a non-discriminatory manner generally could deny them access to its premises. In this situation, however, the Board recognized that, while the contractor’s employees were not NYNY’s own employees, these employees of a contractor were entitled to more access than traditional non-employees. The Board thus adopted a new “access standard,” designed to balance the contractor employees’ rights under federal labor law and the property owner’s property rights and legitimate managerial interests.

Under the new standard, a property owner may lawfully exclude handbilling by a contractor’s off-duty employees in public, non-work areas “only where the owner is able to demonstrate that [the] activity significantly interferes with [the owner’s] use of the property or where the exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline” (emphasis added). The Board left open the possibility that in some instances property owners will be able to “demonstrate that they have a legitimate interest in imposing reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees.”

Applying this new standard, the Board found that NYNY failed to demonstrate that the handbilling significantly interfered with NYNY’s use of the property, and failed to justify the exclusion on the basis of another legitimate business reason. The Board reasoned that the contractor’s employees did not interfere with the operations or discipline at NYNY’s property, did not adversely affect the ability of customers to enter, leave, or use the facility, nor adversely affect the ability of employees to perform their work. Accordingly, the Board found that NYNY violated Section 8(a)(1) by prohibiting the contract employees from handbilling in front of the two restaurants located within the hotel and on the covered sidewalk and driveway outside of NYNY’s main entrance.

What These Decisions Mean for Employers

The two recent Board decisions demonstrate the current Board’s proclivity to interpret the NLRA in a way to expand employee organizing rights and place added burdens on employers to insure their rules and regulations are narrowly tailored to comply with the NLRA. Although UNITE HERE and other unions have long looked to an employer’s handbook rules as a source for potential unfair labor practice charges, the Jurys Boston Hotel decision demonstrates that the Board will use the mere maintenance of overbroad yet unenforced rules, without more, to set aside elections. Employers with overbroad handbook policies, enforced or not, risk unfair labor practice findings and having favorable elections overturned. All handbooks and policies should be reviewed by labor counsel to insure they comply with the NLRA.

In New York New York, the Board changed the landscape regarding what access employers and/or property owners must provide a contractor’s off-duty employees to public, non-work areas. Accordingly, employers and hotel property owners need to re-address their access rules, and train management and security on the new precedent. Failure to do so could result in unfair labor practice charges.