December 20, 2012

The NLRB on unlawfully restricting access of off-duty employees to the worksite

Posted in Employment Law by Gene Killian |

Employment law often calls to mind Horace Greeley’s saying about common sense being quite uncommon.  Say, for example, you run a hotel.  You don’t want your staff hanging around the pool during their breaks and annoying the guests.  So you publish a rule that reads:  “The hotel and its facilities are designed for the enjoyment of our guests.  If you wish to use the guest facilities during nonworking hours, you need to obtain prior approval from your manager.”  Problem solved, right?

Wrong, according to the NLRB in Marriott International, Inc. and UNITE HERE, 359 NLRB No. 8 (2012).  (The full decision is available on the Board's website here.)The Board ruled that such a rule was illegal, because employees might think that it restricted their rights under Section 7 of the Labor Management Relations Act “to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Note:  Section 7 applies to all workplaces, not just union shops, and to nonunion employees as well as union employees. 

The Board began by reciting the longstanding holding in Tri-County Medical Center, 222 NLRB 1089 (1976), which allows a rule restricting off-duty employee access only if it (1) limits access solely with respect to the interior of the plant 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 to those employees engaging in union activity.

In other words (I thought), you basically can’t restrict access to the parking lot where employees might want to picket or congregate to discuss work issues.

But here, the Board affirmed the findings of the administrative law judge, who had found “the term ‘guest facilities’ ‘overly broad and undefined’ and likely to confuse reasonable employees into believing that they needed to obtain prior management approval before engaging in protected activity, including in parking lots and other nonwork areas.”  The Board further wrote: “An employee who uses the hotel’s guest facilities during off-duty hours does not somehow shed his or her employee status and Section 7 rights.  For example, an employee who stays after work to discuss union matters with co-workers over supper in a hotel restaurant clearly would be engaged in activity protected under Section 7.”  (That’s sort of intellectually dishonest. If an employee is paying to have supper in the restaurant, or to rent a room, he or she is now a guest, and no longer just an employee.  Which for some reason reminds me of the late baseball manager Billy Martin’s admonition to his players on the Minnesota Twins:  “You can’t drink in the hotel bar, because that’s where I drink.”)

The Board issued a similar ruling with respect to the hotel’s “access” rule, which prohibited employees from being in the interior areas of the hotel more than 15 minutes before or after their work shift without managerial approval. 

Member Hayes, dissenting, wrote:  “The rules do not mention Section 7 activity, were not promulgated in response to Section 7 activity, and have never been applied to restrict Section 7 activity…Employees would understand the rule in accordance with its evident purpose: to ensure an enjoyable stay for Marriott’s paying guests, not to interfere with its employees’ union activities.”

Normally, I like to conclude blog posts with a few suggestions for action or to minimize liability.  On this one, I’m lost.  Sorry.