Section 16 Off-Duty Employees

• Library: Employer-Employee Law 2008

In Automotive Plastic Technologies, Inc., 313 N.L.R.B. 462 (1993), the NLRB made it clear that with respect to the Lechmere doctrine—Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)—the law had not changed regarding an employer’s right to restrict the use of the employer’s property for its employees. The NLRB did not agree with the employer’s position that off-duty employees should be treated as nonemployees who, therefore, had no right to return to their workplace to communicate with coworkers about union activities. Thus, Tri-County Medical Center, Inc., 222 N.L.R.B. 1089 (1976), continues to be good law in holding that a policy restricting access to the employer’s premises by off-duty employees is valid if it:

• limits access solely with respect to the interior of the plant and working areas

• is clearly disseminated to all employees; and

• applies to off-duty employees seeking access for any purpose, not just those engaging in union activity

In United States Postal Service & Local No. 300, 318 N.L.R.B. 466
(1995), the NLRB extended the Tri-County Medical Center,
222 N.L.R.B. 1089, rule so that employees from an employer’s facility who seek access to another facility of the same employer to distribute union literature are engaging in protected activities. The NLRB specifically rejected the employer’s contention that the Lechmere, 502 U.S. 527, doctrine should apply to employees at any facility at which they did not work. It should be noted, however, that an employer still has a right to promulgate and enforce nondiscriminatory no-distribution and no-solicitation rules to limit the impact of such activity on its private property. Beverly Enters.-Haw., Inc., 326 N.L.R.B. 335 (1998); Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245 (5^th Cir. 1992).

Although the NLRB continues to apply the principles of Tri-County Medical Center, 222 N.L.R.B. 1089, to off-duty employee access, in Santa Fe Hotel, Inc., 331 N.L.R.B. 723 (2000), the NLRB refused to apply Tri-County Medical Center because there was no evidence that the hotel ever maintained a...