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Off Duty Employees Enjoy Access Rights to Employer’s Property for Organizational Activities Under the National Labor Relations Act

Volume 2, Issue 17
November 1, 2003

In several recent cases, the National Labor Relations Board ("Board") and the federal circuit courts have reaffirmed the rights of off duty employees to access their employer's property for organizing purposes, as well as for other protected concerted activities. The leading Board case on this issue is Tri-County Medical Center, 222 N.L.R.B. 1089 (1976). In that case, the Board set out the permissible limits of an employer's disciplinary procedures for employees' off-duty access of company property, stating that a disciplinary rule concerning off-duty access to company property is not unlawful if it: (1) limits access solely with respect to the interior of the plant 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 also specifically found that, except where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates and other outside nonworking areas is unlawful. These rules have also been applied to employers with multiple employment sites that seek to restrict employees' access to employment sites other than their own assigned location. See ITT Indus., Inc., 331 N.L.R.B. No. 7 (2000) (finding that employer could not deny off-duty and off-site employees the opportunity to handbill on-site employees in a company parking lot).

The United States Court of Appeals for the Sixth Circuit recently upheld a Board decision finding that a nursing home employer violated the National Labor Relations Act by denying off-duty employees access to outside non-working areas of its facilities other than the ones where they were assigned. In that case, employees of First Healthcare Corporation were seeking to be represented by the Service Employees International Union, Local 399. Among other things, First Healthcare refused to permit off-duty employees to access the outside areas of work sites other than their own to hand out union literature. The Board found that enforcing such a rule to deny off-site employees access to parking lots and other non-work areas for union solicitation violated the National Labor Relations Act. In agreeing with the Board, the Sixth Circuit Court found that the National Labor Relations Act provides offsite employees with non-derivative and substantial organizing rights, including access to non-working areas of other facilities owned by their employer. First Healthcare Corp., v. NLRB, 344 F.3d 523 (6th Cir. 2003).

In another recent case that involved a nonprofit group that serves disabled adults at nine group houses in Santa Fe, New Mexico, the Board ruled that the employer issued an overly broad access rule when it told an employee to cease going to one of the employer's other group houses during his off-duty time to meet with employees coming off their shifts. The employee was soliciting signatures on a letter complaining about staffing ratios, training, and wages. The Board found that it was unnecessary to apply the principles in Tri-County as the no-access rule was unlawfully directed only at activities protected by the National Labor Relations Act. Santa Maria El Mirador, 340 N.L.R.B. No. 84 (2003).

Unless expressly overruled by the United States Court of Appeals for the Ninth Circuit or the United States Supreme Court, the Board's access rules apply to Nevada employers. Thus, employers are encouraged to make sure that both their written and unwritten access procedures are in compliance with the Board's case law.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.