NLRB makes barring off duty employee access to company property exceedingly difficult

The NLRB has issued an interesting decision concerning an employer's ability to limit employee access to employer's facility when the employee is off duty. In Marriott International, 359 NLRB No. 8 (free download at the NLRB web site). The Board's opinion does a good job of explaining the Board's current position on access and use rules. Essentially it appears any rule which does not affirmatively and extensively advise employees of their right to engage in Section 7 activity in the otherwise restricted area of the facility either chills employee rights or intimidates employees from engaging in such rights at all. Also, any discretion reserved to management to permit off duty employees to return for company business invalidates the rule by virtue of creating an exception, subject to managment discretion.

Because the Board defines these infringements by reference to its imaginary "objective employee's" perception of the effect of the rule, the Board can freely find a violation. A rule that does not expressly, accurately and completely advise employees of their rights will be found to chill those rights even where it has never been enforced against an employee in violation of Section 7. Employers limiting access have a daunting task to craft rules which the Board would find acceptable.

Because Section 7 affords rights to all employees, not only those in a unionized employment environments, all employers should seek advice concerning any rules denying employee access to company property.

NLRB and social media

The NLRB has issued a recent decision striking down an employer's overly broad social media policy on the grounds it might intimidate employees in the exercise of Section 7 rights. In Costco Wholesale Corporation, 34-CA-012421. The Board overturned an ALJ's decision upholding a

rule prohibiting employees from electronically posting statements that "damage the Company . . . or damage any person's reputation.

The Board concluded this policy would reasonably tend to chill section & activity. page 2 of the decision does a pretty good job of laying out the potential problems with social media policies. There are three potential problems: chilling effect, a rule promulgated in response to union activity and application of the rule to restrict Section 7 activities. Any one of the three could lead to a violation. The Board hinted that an employer providing examples of proscribed conduct, and a disclaimer of coverage of Section 7 activities might avoid a violation, but the ultimate analysis is going to be the ALJ/Board's view of whether the policy and its context indicates any one of the three problems exist.

Employer burden to justify ban on employees discussing ongoing investigation

In Banner Health Systems, 28 CA 023438, 348 NLRB No. 93, [Download here] the NLRB continues its aggressive expansion of protection for employee concerted discussions of workplace issues. In Banner, the employer had a blanket prohibition against discussion of its investigation of workers complaints. The Board rejected this approach as overbroad and required an individualized showing by the employer of its business justification for interfering with Section 7 rights. Money quote:

it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated,or there [was] a need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed to meet those requirements.

This result is unremarkable given the text of Section 7;, yet the practical effect upon, and burden on employers during an ongoing investigation are potentially huge. 

"At will" policy violates NLRA

Can an employer's "at will" statement and handbook acknowledgement form violate the NLRA? One administrative law judge has ruled it can. In American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443 downloadable here (February 1, 2012) the ALJ found an Employers acknowledgement form, which employees are required to sign, and which states “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way” violated the Act by maintaining and requiring employees to sign an acknowledgement form which is overly-broad and discriminatory. It is reasonable to expect the current NLRB to affirm this decision. If so, a whole lot of employers will be changing their at-will language. ALJ's money quote after the jump.