By Jeffrey A. Berman

Employer rules prohibiting off-duty employees from returning to the worksite are generally lawful provided they meet the three-part test established in Tri-County Medical Center, 222 NLRB 1089 (1976).  Under this test, a rule prohibiting off-duty employee access to a facility is valid if it limits access solely to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, and not just for union activity.

The USC University Hospital, an acute-care hospital located in Los Angeles, California, had a rule that appeared to comply with Tri-County in that it generally prohibited all off-duty employees from entering or re-entering the interior of the Hospital or any other work area outside of the Hospital, and did not prohibit access only to employees engaged in union activity.  Off-duty employees also were permitted to enter the hospital to visit patients or receive medical treatment.

The NLRB had no problem with either of these two exceptions as they merely treated the off-duty employees “on the same basis and under the same procedures as for members of the public.”  Sodexo America LLC and USC University Hospital, 358 NLRB No. 79 (July 3, 2012).  However, two Members of a three-Member Board panel held that a third exception that permitted off-duty employees to enter the Hospital for “Hospital-related business,” which was defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management,” violated Section 8(a)(1) of the NLRA.

The ALJ in the case concluded that the third exception was permissible as it applied only to employees who returned to the Hospital to work an extra shift.  The two-Member panel rejected this interpretation as, in its view, rendering “the exception meaningless” because “employees who are at the facility to work are not off-duty and would not be subject to an off-duty access policy.”  The panel then concluded that this exception caused the rule to violate that NLRA because it “gives Respondents free rein to set the terms of off-duty employee access….”

The panel next turned to the question of whether the employer violated the NLRA when it disciplined four employees for violating the off-duty access rule.  Because the record in the case did not indicate whether the four were engaging in union or other protected activities at the time they were disciplined, the panel remanded the case to the ALJ to reopen the record and determine if the activity of the four employees “implicated the concerns underlying Section 7” of the NLRA.

Member Hayes filed a partial dissent.  In his view, the third exception did not violate Tri-City.  In his view, the panel’s interpretation of the “Hospital-related business” exception was tantamount to a holding that a hospital cannot maintain a valid off-duty access rule “if it also allows employees to engage in innocuous activities such as picking up paychecks, completing employment-related paperwork or filling out patient information.”