Board Reminds Us – No-Access Rule Except With Permission Unlawful
The National Labor Relations Board (“Board”) recently reminded employers to tread carefully when enacting no-access (no re-entry) rules. They held an employer’s policy prohibiting employees from remaining on-premises after their shift “unless previously authorized by” their supervisor was unlawful under the National Labor Relations Act (“Act”), a ruling nearly identical to a 2012 ruling. See American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West.
Under the Act, employers may not interfere with the rights of employees to engage in protected concerted activity, such as union organizing. Therefore, policies restricting access to employers’ interior premises are heavily scrutinized by the Board. (Off-duty employees generally have the right to access exterior premises such as parking lots.) The Board has said that a rule restricting off-duty employee access to the workplace is valid only if it “1) limits access solely with respect to the interior of the facility 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 held that under the third prong of the test, the rule in this case was not lawful because it gave management unlimited discretion to decide when and why employees may re-enter the facility.
The Board decided a string of similar cases in 2012 which included striking down rules barring access except for employer-sponsored events, prohibiting access without prior manager approval, and stating employees could not re-enter a hospital except to “visit a patient, receive medical treatment or to conduct hospital-related business.”
The bottom line is no-access rules are best when they cover all circumstances or none. If you need to go in the middle, seek counsel so your rule can withstand the scrutiny of today’s Board.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.965.0560.