By Nelson Cary and Cecil Patterson

Recently, in Sodexo America LLC, 358 N.L.R.B. No. 79 (2012) (2-1), the NLRB found that a hospital policy restricting employees’ off-duty access to the hospital violated the NLRA. The policy provided that:

 

Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.

 

The policy further defined “hospital-related business” to mean the pursuit of an employee’s normal duties or duties as specifically directed by management.

 

Under the policy, off-duty employees entering the facility for visitation purposes or to obtain medical treatment were subject to essentially the same protocol as members of the public. Off-duty employees entering the facility to conduct “hospital-related” business were required to do so as if they were on-duty, using employee entrances and badges, and were not required to sign in at the visitor’s desk. 

 

On May 5, 2010, the hospital placed an employee on investigatory suspension for violating the no-access rule. During the suspension, the employee visited the facility, and a hospital security officer threatened to arrest him. On May 12, the hospital demoted the employee. The hospital also orally warned three other off-duty employees for violating the rule.

 

The NLRB majority relied on a 1976 decision to assess the employer’s rule.  One requirement of that decision is that the employer’s rule must apply to off-duty employees seeking access for any purpose and not just to employees seeking to engage in union activity. The NLRB found that the hospital’s policy violated this requirement.

 

Specifically, the “hospital-related business” exception doomed the rule. The definition of “hospital-related business” only permitted access to off duty employees for “duties as specifically directed by management.” The NLRB interpreted this provision to provide management “unlimited discretion” to determine who can enter the employer’s property and for what purpose. Thus, it didn’t apply to all employees seeking access for any purpose. Moreover, the NLRB concluded that a reasonable employee would not interpret this definition to include permission to engage in union-related activities. Accordingly, the NLRB held that rule, “on its face,” prohibited access for union-related activities, but permitted access for any activity directed by management.

 

With respect to the policy’s exceptions for visiting patients or seeking medical care, however, the NLRB concluded differently. This exception was unrelated to employees’  employment and access is granted or denied on the same basis as for members of the public. Accordingly, these exceptions did not render the hospital’s rule invalid.

 

Member Hayes (R) dissented from the majority opinion, declaring the hospital’s off-duty no-access rule did not violate the NLRA. Member Hayes believed that the majority used an unduly restrictive interpretation of the 1976 test, which was not supported by NLRB precedent and which was not intended by the prior decision. In Member Hayes’ view:  “This is even more evident here where the end result of the majority’s holding is that a hospital cannot maintain a valid off-duty access rule if it also allows employees to engage in innocuous activities such as picking up paychecks, completing employment-related paperwork or filling out patient information.”

 

The NLRB’s decision underscores for labor professionals that work rules must be written with care. Rules regulating a broad range of employee conduct, even those that are seemingly innocuous, can lead to liability for the employer. Moreover, the NLRB will construe rules the employer writes against the employer if the NLRB believes the rules are ambiguous. It is important, therefore, that an employer have qualified labor counsel review those rules on a regular basis.