Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.
Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law. For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that an employer could prohibit their own employees off-duty access to the working areas of its property, again provided it did so non-discriminatorily. In a series of decisions the Board has significantly limited these employer rights.
First in New York New York LLC dba New York Hotel & Casino, the Board granted a right to the employees of a contractor/restaurant to access and use the property of the landowner/casino to try to organize the contractor’s employees. In so doing the Board removed the ability of employers who have on-site contractors to exercise their state property rights and limit off-duty access of the contractors’ employees.
More recently, in Saint John's Health Center and Sodexo America LLC, the Board has essentially rendered meaningless the provisions of Tri-County Medical Center enabling employers to prohibit off-duty access of employees to working areas. In both cases the employers had policies prohibiting off-duty access with the exception of attending employer "sponsored events" or for employer-related business. The Board ruled that because those employers allowed employees to come on to the employers’ premises to attend events as determined by management they did not fall within the Tri-County rule. However, as the dissent pointed out in both cases, the Board’s new position in essence means that an employer cannot allow an off-duty employee to come on its property to attend a retirement party, pick up a check or fill out employment related paperwork (i.e. vacation or leave request) without also allowing the employee off-duty access to engage in union organizing.
Management Missive
- Management should review its policies and practice on providing off-duty employees access, ensuring that any exceptions are both narrowly tailored and specific.
- Like all such policies, Management should make sure that any rules it wishes to have are promulgated prior to any evidence of union activity, recognizing that once organizing activity begins they likely will not be able to adopt any new rules.
- Management must ensure that any off-duty access rules are clearly articulated and uniformly enforced.
- Management should seek counsel’s advice prior to disciplining any employees for violating \an off-duty access rule.
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