Employer's Off-duty Employee Access Rule Invalid; Theoretically, Narrow Exceptions to a No-access Rule Could Be Valid: NLRB

Practical Law Legal Update 8-521-7552 (Approx. 6 pages)

Employer's Off-duty Employee Access Rule Invalid; Theoretically, Narrow Exceptions to a No-access Rule Could Be Valid: NLRB

by PLC Labor & Employment

Key Litigated Issue

The NLRB recently issued a decision offering new analysis of off-duty employee access and use rules and analysis of what does not constitute rescission of an invalid policy. In Marriott International, Inc., the key litigated issue was whether the following workplace rules are unlawful:

An access rule and its revision prohibiting off-duty employee access (without managerial approval) to:
- interior areas of the hotel (the original rule); or
- hotel property (the revised rule).
A use rule and its revision prohibiting employee use of various guest and resident owner facilities without managerial approval.

Background

This case involves the legality of workplace rules promulgated, revised and maintained by Marriott at one of its hotels in Los Angeles. The access rule and its revision prohibit off-duty employee access to interior areas of the hotel (the original rule) or to hotel property (the revised rule) without managerial approval:

The original access rule. "Associates are not permitted in the interior areas of the hotel more than fifteen 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. Failure to obtain prior approval may be considered a violation of Company policy and may result in disciplinary action. This policy does not apply to parking areas or other outside nonworking areas."

The revised access rule. "Employees are not permitted in the interior areas of the Property more than fifteen minutes (15) before or after their work shift. Occasionally, circumstances may arise when you are permitted to return to interior areas of the Property after your work shift is over or on your days off. On these occasions, you may obtain prior approval from your manager. Failure to obtain prior approval may be considered a violation of Company policy and may result in disciplinary action. This policy does not apply to parking areas or other outside nonworking areas (emphasis added)."

The use rule and its revision prohibit employee use of various guest and resident owner facilities without managerial approval:

The original use rule. "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."

The revised use rule. "The Property and its facilities are designed for the enjoyment of our guests and residence owners. You are not permitted on guest or resident floors, rooms, or elevators, in public restaurants, lounges, restrooms or any other guest or resident facility unless on a specified work assignment or with prior approval from your manager. Permission must be obtained from your manager before utilizing any Property outlet, visiting family or friends staying in the Property, or using any of the above mentioned facilities. Please ensure that the manager of the area you intend to visit is aware of the approved arrangements."

The administrative law judge (ALJ) found that each of the challenged rules was unlawful. The NLRB evaluated both the original and revised rules because it found that the original rules were never formally rescinded. The employer had disseminated new employee handbooks containing the revised rules only to:

New employees hired after the revised handbook was published.
Incumbent employees that asked for a copy of the revised handbook.

Outcome

On September 28, 2012, a three-member panel of the Board issued a decision in Marriott International, Inc., affirming the ALJ's holding that the employer violated Section 8(a)(1) of the NLRA by maintaining all four challenged workplace rules. A two-member majority (Chairman Pearce and Member Block; Member Hayes dissented) held that under the well-established three-prong test of Tri-County Medical Center, a rule restricting off-duty employee access is valid only if it:

Limits access solely with respect to the interior of the plant and other working areas.
Is clearly disseminated to all employees.
Applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.

The Board also affirmed the ALJ's conclusion that the employer failed to rescind the original handbook that included the original access and use rules.

Original Access Rule

The Board held that the original access rule is unlawful under Tri-County, because, like the rules in Saint John’s Health Center or Sodexo America LLC, it is not a uniform prohibition of access (see Legal Updates, Employer-related Business Exception to Off-duty Access Ban is Unlawful: NLRB and Narrow Bans on Union Insignia in Patient Care Areas, Unlike Broad Bans, Not Presumptively Lawful: NLRB). The rule prohibits off-duty employee access except in certain unspecified circumstances subject to a manager’s prior approval. This gives the Respondent broad, or even unlimited discretion to decide when and why employees may access the facility. The Board went on to state that the original access rule is also unlawful under the Lutheran-Heritage Village- Livonia workplace rules test, because it reasonably tends to chill employees in the exercise of their Section 7 rights. Although the rule does not explicitly restrict activity protected by Section 7, employees would reasonably construe its language to prohibit Section 7 activity.

Revised Access Rule

The Board also found that the revised access rule (which prohibits off-duty employee access to interior areas of the "Property" rather than the "hotel") is invalid for the same reasons as the original access rule. In fact, the Board noted that the term "Property" in the revised rule could be construed by employees as an even broader unlawful access restriction.

Original Use Rule

The Board rejected Marriott's arguments that:

The original use rule applies to off-duty employees who want to use the hotel’s facilities as guests, and guests have no Section 7 rights.
The use and access rules "go hand in hand" and the judge neglected to read them in conjunction with each other.
When read together, it would be apparent that the access rule’s exclusion of parking lots and outside nonwork areas equally apply to the use rule.

In rejecting this argument, the Board held that the use rule is unlawful under both Tri-County and Lutheran Heritage Village, stating that:

An employee who uses the hotel’s "guest facilities" during off-duty hours does not shed his employee status and Section 7 rights.
Like the access rules, this rule requires management’s permission for all activities without exception and therefore has a chilling effect on employee Section 7 activity.
It is not reasonable employees would necessarily read the use and access rules in conjunction with each other. The rules were adopted separately, and employees reasonably would conclude that they have separate and distinct purposes.
The Respondent clearly knows how to exclude parking lots and exterior non-work areas from the scope of a rule, as it did so in its access rules. However, it did not make this exclusion in its use rule. An employee would therefore reasonably believe that choice was deliberate, and that the term "guest facilities" does not exclude parking lots and exterior nonwork areas.

Revised Use Rule

The Board noted that the Respondent’s revised use rule goes beyond the original use rule by:

Requiring prior approval to use the guest facilities during non-work hours.
Restricting employee access to numerous specific parts of the hotel without managerial approval.

The Board affirmed the ALJ's holdings that:

The following terms would reasonably be read by employees to include the entire property and are even broader than the language used in the original use rule (which was found invalid):
- "property;"
- "property and its facilities;" and
- "property outlet."
The revised use rule would reasonably be interpreted by employees to:
- restrict off-duty employee access to exterior non work areas; and
- construe the revised rule to prohibit Section 7 activity without proper managerial approval.
The revised use rule is invalid because it does not specify that it applies only to off-duty employees. In fact, language in the revised rule prohibiting employees from being in certain locations “unless on a specified work assignment” clearly contemplates otherwise. Employees would therefore reasonably interpret the rule to restrict their right to engage in Section 7 activity at nonworking times when they are properly on the Respondent’s property, such as during breaks.

Dissent

In his dissenting opinion, Member Hayes found that the off-duty access and facility use rules comply with the Tri-County Medical Center test and lawfully restrict off-duty employees from accessing the interior of the hotel or using the guest facilities. Member Hayes also stated that the rules are valid under the Lutheran Heritage Village – Livonia test because they:

Make no reference to Section 7 activity.
Were not created in response to union activity or ever enforced against union activity.
Would not cause reasonable employees to understand them to prohibit Section 7 activity.

Member Hayes then stated that the majority:

Misread Tri-County to prohibit employers from allowing commonsense exceptions to off-duty no-access rules.
Reads Marriott’s use rules in isolation from its access rules, contrary to Board and court precedent.
Made a decision that continues its dismantling of the careful balance between an:
- employer’s right to control its property; and
- employee’s right to engage in Section 7 activity.

Practical Implications

This decision enforces the Board’s longstanding Tri-County test governing no-access rules for off-duty employees. Using Tri-County principles, the decision prohibits an employer from interfering with employees’ Section 7 rights by requiring the employees to obtain permission to engage in protected concerted activity. As Member Hayes noted in his dissent, the Board majority suggests that it is possible for employees to create a narrow exception for special circumstances to permit access while maintaining a general no-access rule but provide no practical guidance to employees. Cautious employers that are primarily concerned with compliance with the NLRA should consider either blanket access bans or blanket access permissions.

Employer's Off-duty Employee Access Rule Invalid; Theoretically, Narrow Exceptions to a No-access Rule Could Be Valid: NLRB | Practical Law