NLRB Attacks Managerial Discretion

Written by Robert G. Brody and Rebecca Goldberg on October 31, 2012

Thinking of vesting your managers with discretion?  According to a trio of decisions by the National Labor Relations Board (“NLRB”), you may be violating the National Labor Relations Act (“NLRA”) if that discretion would apply to enforcing “access restrictions.”  Access restrictions (also called “re-entry rules,” and “no-access rules,”) delineate under what circumstances off-duty employees can and cannot enter the employer’s interior facilities.  (Employers generally cannot restrict access to external facilities, such as parking lots.)  If an employer takes any kind of middle-ground approach to the issue, it must be prepared for NLRB scrutiny.  The NLRB’s recent decisions push employers toward unreasonable all-or-nothing positions and as a result, employers must take great care when drafting access restrictions.

The NLRB’s concern with access restrictions is that they might impinge upon employees’ rights to engage in protected, concerted activity, which includes union organizing activity.  These rights are protected under the NLRA.  In 1976, in Tri-County Medical Center, the NLRB established a three-part test for determining whether access restrictions are valid. To be valid, the rule must (1) limit access solely with respect to the interior of the premises or other working areas, (2) be clearly disseminated to all employees, and (3) apply to off-duty employees seeking access to the premises for any purpose and not just to those employees engaging in union activity.

Recent cases have focused on the third prong of the Tri-County Medical Center test and the employer’s exercise of discretion.  In Saint John’s Health Center, the NLRB struck down a no-access policy that barred access to the facility except for employer-sponsored events.  The NLRB reasoned that the policy told employees, “You may not enter the premises after your shift except when we say you can.”  In J.W. Marriott, the NLRB struck down a policy that prohibited access to off-duty employees without prior approval from a manager.  Because employees could interpret that policy to mean they had to disclose union organizing activity or other protected activity in order to obtain permission, the rule would unlawfully “chill” the exercise of employees’ rights under the NLRA.

One case in which the NLRB exercised a bit of common sense is Sodexo America LLC.   The NLRB considered a policy issued by USC University Hospital and its food service provider, Sodexo America LLC.  The policy barred employees from entering the hospital’s interior “except to visit a patient, receive medical treatment or to conduct hospital-related business.”  “Hospital-related business” was defined to include “the pursuit of the employee’s normal duties or duties as specifically directed by management.”  Using similar reasoning to the other cases, the NLRB found the policy unlawful because the phrase “duties as specifically directed by management” allowed the employer to cherry pick the scenarios under which it would permit access.  However, the NLRB acknowledged that a policy prohibiting access except for the purposes of visiting patients and seeking medical care would be valid.  Otherwise, employees’ (and their loved ones’) access to medical care would be limited.

While the Tri-County Medical Center test was probably intended only to prohibit discrimination against union activity, employers are now forced to take an all-or-nothing approach to this issue, with little room for exceptions, such as in Sodexo America LLC.  While this decision may seem unreasonable, it is consistent with the NLRB’s attempt to keep the NLRA alive in today’s non-union world.

Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Labor Management Issues, Legal Updates, NLRB

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More