In a recent decision, Marriott International, 359 NLRB No. 8 (2012), the National Labor Relations Board continued its recent efforts to limit an employer’ s ability to regulate its employees’ off-duty access to work areas. For the third time in a year, the Board has expanded on existing case law to find that an employer’s access policies unduly discourage employees from engaging in protected Section 7 conduct.
The access policies at issue prohibited off-duty employees from accessing working areas unless they obtained prior approval from management. In Tri-County Medical Center, 222 NLRB 1089 (1976), the Board set forth a three-part test to determine the validity of employee access rules. It concluded an access policy would be lawful 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.
The Board majority in Marriott concluded that the access rule at issue failed to pass the Tri-County test because:
the Respondent’s rule is not a uniform prohibition of access; rather, it prohibits off-duty employee access except in certain unspecified circumstances subject to a manager’s “prior approval,” giving the Respondent broad – indeed, unlimited – discretion “to decide when and why employee may access the facility.
It also concluded that the rule chilled employees in the exercise of their Section 7 rights because employees would reasonably construe the policy to prohibit Section 7 conduct, particularly because they would have disclose their intention to engage in Section 7 conduct to management when seeking approval.
Member Bryan Hayes dissented in the decision. He questioned the Board’s expansive application of the Tri-County test and concluded that
The Act cannot reasonably be interpreted to force employers to choose between inhuman rigidity and giving off-duty employees free rein to the interior of their facilities. Here, because union activity is treated no differently from other activity under the Respondent’s access rule, I would find these rules unlawful.
Member Hayes also recognized that there was no evidence that the access rule had been promulgated in response to or been applied to restrict Section 7 activity.
The long-term viability of the case, however, like the long-term viability of all recent Board action is questionable for two reasons. First, one of the members that joined the majority decision was a recess appointment by President Obama that was not confirmed by the Senate. Currently, there are several lawsuits challenging the validity of those appointments. Second, the outcome of the presidential election may or may not significantly alter the composition of the Board. In the meantime, employers would be wise to take the necessary measures to conform their policies to the mandates of this decision.