Difference between Employee and Non-Employee Off-Duty Access Policies

The NLRB and courts recognize that off-duty employees have greater rights than non-employees when it comes to accessing the employer’s property to engage in protected activity.

The NLRB applies a three-part test to determine if an employer’s off-duty access policy is valid under the National Labor Relations Act. An off-duty access policy is valid only if it: 1) limits access solely 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 facility for any purpose and not just to those engaging in union activity. In essence, employers may not maintain a rule or prohibit off-duty employees from accessing the exterior areas or other non-working areas of the employer’s premises.

The current NLRB will find that simply maintaining an overly broad off-duty access rule is unlawful. For example, off-duty employees distributed union pamphlets advocating for pay raises to other employees and customers just outside the main entrance of a store. The manager told the employees to leave, they did not leave nor were they disciplined for not leaving. The company had a long-standing policy prohibiting employees from loitering or “hanging out” around the company’s premises when off-duty. This policy prohibiting off-duty employees from hanging out in all areas of the employer’s premises was unlawful.

NLRB Chairman Miscimarra argued in his dissent that in evaluating work rules, the NLRB should place more emphasis on how a rule is actually applied compared to the more amorphous standard of how employees may “reasonably construe” a rule. Miscimarra is currently in the minority of the Board. As new Board members are appointed, the NLRB’s position on access rules and many other controversial issues may change.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

NLRB Unanimously Ruled Employee Conduct Lost Protection from the Act

The outcome of this case surprised me because the NLRB has previously found less egregious activity to be protected by the National Labor Relations Act. A union represented nurses at a hospital. The hospital and nurses’ union were negotiating a collective bargaining agreement. Negotiations became somewhat ugly. This caused the employer to cancel a bargaining session and the union employees to agitate against the employer.

When one nurse saw the employer conducting a tour of its hospital for managers and staff from a sister facility she started screaming and demanding to know “who the visitors were and why were they there.” When the employer did not respond, she started asking the visitors directly why were they allowed to visit her hospital when she was barred from visiting their facility (she and a union official previously attempted to visit the sister facility and were denied access). Still receiving no response, the nurse “again asked what the visitors were doing at the hospital, asked one particular visitor how many orientations he needed, and pointed out, sarcastically, ‘here’s the hallway, here’s the window…’”

When the tour wound down in the parking lot, the nurse approached the group, pointed at the leader of the tour and said “this one don’t do sh&t. She ain’t sh$t! She walks around here with an air…I am going to get you the f*ck out of here.” The employer terminated the nurse for unprofessional conduct.

As the NLRB Regional Offices are prone to do, it argued that her termination was motivated by her protected activity. The case went to trial where the Administrative Law Judge ruled that the motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity – her unprovoked misconduct that interfered with a legitimate tour group. Here’s the kicker, on appeal, the NLRB upheld the ALJ’s decision.

I fully expected the NLRB to rule that the nurse’s behavior towards the tour group was protected concerted activity. I am glad I was wrong. Had the nurse used profanity towards a manager while expressing a legitimate workplace grievance and no outside visitors, customers, or clients were present, her conduct would be protected. Instead, the nurse aimed her antics at a tour group, visitors who were not involved in any workplace dispute, with the sole objective to vex the employer. According to the ALJ:

The tour and its aftermath were not an invitation for her to interfere with the tour so as to turn those acts of interference into protected activity. At best, [the nurse’s] testimony shows that in her mind, she perceived the tour as somehow related to her union activity. But protected activity must be based on objective fact, not subjective perceptions of the party or witness making the claim.

Pro tip to employers: while it certainly feels that employees are able to do whatever they want against an employer these days, don’t just assume a union employee’s activities are protected even during bargaining season. Close scrutiny should be paid to the facts before determining whether the activity was protected, whether it was protected but lost the protection, or whether it was never protected. Once that is determined, you should take appropriate action.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

NLRB Just Expanded Its Authority to Find an Employer Violated the Act when Banning Non-Employee from Worksite.

The Obama-era NLRB is determined to go out with a bang. The brief facts of this case, decided by a 2-member majority of pro-union Board Members, is as follows: A beverage supervisor worked at a casino for less than one month. After her employment ended, she frequently socialized at the casino’s nightclub. Six months after her one-month employment ended, she filed a class action lawsuit against the casino for alleged violations of the Fair Labor Standards Act. The casino then barred from the premises during the litigation.

Following in the footsteps of most plaintiff lawyers these days, she filed an unfair labor practice charge with the NLRB over the ban. That’s right. A former employee filed a ULP against her employer who banned her from the worksite more than 6 months after her employment ended. Surely this case would not survive because 1) Section 10(b) statute of limitations, or 2) the National Labor Relations Act only protects employees (and applicants). Wrong. The NLRB held that barring her from the premises after she filed a lawsuit violated Section 8(a)(1) of the Act since it was retaliation for engaging in the protected, concerted activity of filing a law suit.

Thankfully we have Chairman Miscimarra who dissented. While his dissent does not change the absurd outcome, it does provide guidance for when the Board is faced with similar facts after President Trump’s appointments are confirmed. Miscimarra did not believe the ban violated Section 8(a)(1). To him, there was no allegation that excluding the employee from her former place of employment affected her wages, hours, or terms and conditions of employment.

Secondly, Miscimarra opined that the Board must weigh the interest of employees in concerted activity against the interest of employers in operating their businesses. The record contained nothing preventing the NLRA-protected conduct by the former employee. Notably, the Fair Labor Standards Act has its own anti-retaliation provision and the NLRB cannot take it upon itself to enforce other statutes.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

“No Loitering” Policy: Unlawful says NLRB

Loiter (verb): to stand or wait around idly or without apparent purpose.

Many workplaces prohibit off-duty workers from loitering at the worksite. These policies make great sense. They decrease the likelihood of wage and hour violations by providing off-duty employees the opportunity to claim they were working, but not being paid for their work. They also decrease the risk of an off-duty employee being injured at work and thus file workers compensation claims. Most of the handbooks I have reviewed have “no loitering” policies, and my clients strictly enforce them.

Well, the NLRB recently determined that a no loitering policy at a restaurant violated the National Labor Relations Act because it prevented employees from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, i.e. the right to handbill.

The NLRB held that “an employer’s rule denying access to off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” The Board further found that the rule was overly broad and ambiguous because it did not define “loiter” or “hang around,” and could reasonably be interpreted to prohibit employees from engaging in protected activities, such as handbilling. Also, the rule contained no exception for protected activities like handbilling (despite the Board previously ruling several times that such disclaimers do not turn an unlawful policy into a lawful policy).

To all the employers who have a similar policy in their handbook, I have included the definition of loitering at the top of this post. Copy and paste it into your handbook. Then add a (useless?) disclaimer that the policy does not cover protected activity. Time for my disclaimer: What I just said is not legal advice; your no loitering policy may still violate the NLRA even after doing what I said.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Like Backyard Football when We were Kids, NLRB Allows a “Do-Over”

A union election was underway. One group of employees alleged co-worker Williams threatened to hang any employee who did not vote for the union “like they did…back in the 60s”. The company fired Williams. Williams filed an unfair labor practice charge over his termination. At hearing, the two employees maintained they heard the threat while three other employees said they did not hear Williams make a threat. When this “he-said-she-said” situation occurs, the Administrative Law Judge is required to decide which witnesses are more credible and make a ruling accordingly.

Here, the ALJ ruled that Williams did not make the statement, but then cast doubt on his decision by writing that he “might well be wrong,” and that “some doubt persists” regarding whether Williams made the threat. On appeal, the NLRB held that the ALJ had “undercut his own analysis” by not making a definitive credibility call.

The ALJ also appeared confused about the burden shifting requirements in this case. He seemed to believe that the co-worker had the burden of proving Williams made the threat about hanging people when actually the NLRB’s General Counsel had that burden.

Rather than doing what Boards in the past would have done and dismissed the case, the current Obama hold-over NLRB remanded the case back to the same ALJ for a determination of whether the general counsel carried his burden to prove that Williams did not actually make the statement about hanging.

A do-over. Go figure.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Will New NLRB Stop Protecting Unlawful Employee Conduct?

Something is wrong when the EEOC can find an employer liable for tolerating racist or sexist remarks by employees, and the NLRB can find an employer liable for not tolerating racist or sexist remarks by employees. But that is the quandary employers are left with after eight years of watching the Obama NLRB change laws to protect unlawful employee conduct. Here are some examples that highlight this problem.

  1. Cooper Tire & Rubber locked out employees until a new contract with the union was reached. One evening, a vehicle of African American replacement workers drove by the picket line. One employee picketer shouted admittedly offensive racial insults at them. As a result, Cooper Tire terminated the offending employee for gross misconduct. The union grieved the termination. At Hearing, the ALJ found the termination to be lawful. The union appealed the ALJ’s decision. The NLRB reversed the arbitrator and said that the racist comments, while offensive, did not reasonably coerce or intimidate employees in exercising their rights protected by the NLRA. Cooper Tire has appealed the decision, which is pending before the Eighth Circuit Court of Appeals.
  2. The NLRB found a two-day suspension unlawful for an employee who grabbed his crotch and made a “mean and hateful gesture” while yelling the word “scab” at a female employee, and hitting her car mirror when she left work and crossed the picket line.
  3. The NLRB also ruled against an employer that disciplined a union employee for profane, threatening, and insubordinate conduct during a grievance hearing. That employee repeatedly used the “F” word, referred to a supervisor using an obscenity, attempted to physically intimidate the supervisor, and declared that she could curse, say anything she wanted, and do anything she wanted. The NLRB concluded that the employee’s conduct, although “obnoxious,” did not cause her to lose protection of the National Labor Relations Act.
  4. The NLRB found against a fast food sandwich shop for terminating an employee and warning another employee who hung posters in the store and nearby public places that depicted “sick” sandwich pictures and “healthy” sandwich pictures. The poster stated that since the employees did not get sick days, “We hope your immune system is ready because you are about to take the sandwich test.”
  5. An employer was found to have violated the National Labor Relations Act when it terminated an employee who posted obscene phrase about a manager and his family on Facebook.

Hopefully once President Trump has appointed (and the Senate has confirmed) NLRB Members to the two open slots, that many of the NLRB’s recent decisions that fail to recognize the legitimate business needs of employers will be replaced with ones that balance an employee’s right with an employer’s desire for safe and appropriate workplace rules.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.


NLRB Again Rules Telling Employees the Truth is an Unfair Labor Practice

Employees at Southern Bakeries filed a decertification petition in 2011 – yes, this case started in 2011. That election was unsuccessful. Another employee waited the required 1-year and filed a second decertification petition in 2012. After that filing, the employee collected signatures of 2/3 of the bargaining unit expressing their interest in decertifying the union. In response (because the law allows) the employer withdrew recognition of the union.

The union, as you can imagine, rejected the withdrawal of recognition claiming that it was unlawful. Per the union’s complaint, employees favoring the union had been subject to unlawful harassment and surveillance – including via surveillance cameras installed in the employee break room – and that management had made threats of plant closure and other reprisals.

In 2015 the case made its way to federal court. There, the judge ordered the bakery to continue bargaining with the union citing evidence that he believed caused the employees to reject the union.

At the end of 2016, Southern Bakeries filed its appeal to the judge’s ruling. In the appeal, Southern Bakeries argues that statements by company representatives that other unionized bakeries had been shut down or gone out of business and that collective bargaining could result in lower pay were not intended as specific threats and were First Amendment-protected criticism of the union (also protected by Section 8(c) of the National Labor Relation Act). It further argued that the alleged harassment and individual threats were either justified disciplinary action or did not happen, and that the break room cameras were to combat theft.

I do not know the ultimate outcome of this case, for it has not yet been decided. But there are two major takeaways for employers: 1) getting rid of a union is tricky, convoluted, and rife with legal hurdles employers must navigate; and 2) even when a company is within its Constitutionally-protected right to tell its employees the truth, it may still be bogged down in a legal quagmire by a union that is unwilling to let go of members who no longer want it.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.