September 28, 2012 was a busy day at the National Labor Relations Board (“NLRB”). Not only did the Board issue its first Facebook ruling (Karl Knauz Motors, Inc.), it also decided it latest case invalidating an employer rule limiting employee access. In Marriott International, Inc., 359 NLRB No. 8 (2012), the Board ruled that a hotel rule barring off duty employees from returning to the hotel interior or using its facilities without management permission violates the National Labor Relations Act.
Marriott’s rule provided that employees could not enter the hotel’s interior more than 15 minutes prior to the start of their scheduled shift. The policy went on to state that there may be circumstances where the employee could return to work after a shift or on an off day, but employees would have to get a supervisor’s approval before returning. The policy also made clear it did not apply to parking areas or other outside non-working areas.
The NLRB found the policy unlawful. Relying upon prior decisions in Tri-County Medical Center, 222 NLRB 1089 (1976) and Sodexo America LLC, 358 NLRB No. 79 (2012), the Board held that a rule restricting off duty access is legal only if it limits access solely to the interior of the facility, is disseminated to all employees, and applies to off duty employees seeking access for any purpose. The Marriott rule did not meet the third requirement because it allowed managers to make exceptions giving off duty employees access under circumstances management deemed to be appropriate. In the eyes of the Board majority, “employees would reasonably conclude that they were required to disclose to management the nature of the activity for which they sought access – a compelled disclosure that would certainly tend to chill the exercise of Section 7 rights.”
The Marriott decision is the latest in a line of recent Board cases that are intended to make it easier for employees to organize unions in their workplaces. Through a variety of means, ranging from extending “free speech” protections to employees using social media to granting off duty access to allowing organizing in “micro-units,” the current NLRB is determined to do what it can to alter the 30 year decline in the percentage of the private sector workforce represented by labor unions.
By Eric Paltell