NLRB Clears Hospital Rule on Off-Duty Access

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

Oct. 23 — A rule that limits health care workers from entering a hospital outside of their duty hours is lawful even if it contains an exception allowing them to use the facility as patients or visitors, the National Labor Relations Board decided Oct. 22.

An administrative law judge relied on an NLRB precedent in finding that Marina Del Rey Hospital's policy was unlawful on its face. However, Members Philip A. Miscimarra, Kent Y. Hirozawa and Lauren McFerran said the board changed its position in 2014 and the California hospital's policy does not run afoul of the NLRB's current standard.

But the board agreed with the ALJ that Marina Del Rey illegally blocked off-duty workers from meeting with union representatives in the hospital while allowing other employees to use its facilities for nonbusiness purposes.

The decision affirms the right of hospitals to carve medical treatment and patient visits out of an otherwise lawful no-access rule, but also shows the importance of ensuring that access limits are enforced consistently without discrimination against NLRA-protected activity.

Access Rule Was Challenged as NLRA Violation

According to the decision, Marina Del Rey maintained a policy that barred off-duty employees from entering the interior of the hospital “except to visit a patient, receive medial treatment, or conduct hospital-related business.”

Hospital-related business was defined to mean an employee's normal duties or other duties as directed by Marina Del Rey's management.

Acting on unfair labor practice charges filed by California Nurses Association and SEIU United Healthcare Workers West, an ALJ found in January 2013 that the policy was unlawful on its face.

The ALJ relied on Sodexo America LLC, 358 N.L.R.B. No. 79, 193 LRRM 1129 (2012) (129 DLR AA-1, 7/5/12), in which the board found a similar provision violated the National Labor Relations Act. Section 8(a)(1) of the act prohibits interference with the statutory right of employees to engage in union activity or protected concerted activity for their mutual aid or protection.

Board Finds Facially Valid Policy

Miscimarra, Hirozawa and McFerran said that, unlike the ALJ, they found the hospital policy lawful on its face.

The ALJ followed NLRB precedent as it existed in 2013, but the board vacated the Sodexo decision in 2014 and reconsidered Sodexo's no-access policy (361 N.L.R.B. No. 97, 201 LRRM 1677 (2014)). In the second decision, the board held the rule was not facially unlawful.

Under Tri-County Medical Center, 222 N.L.R.B. 1089, 91 LRRM 1323 (1976), a lawful rule barring off-duty access must be limited to the interior of the employer's facility and must be clearly disseminated to employees. It must also apply to off-duty access for all purposes, not just union activity.

Allowing exceptions to a no-access rule can undermine its validity under Tri-County, but Miscimarra, Hirozawa and McFerran said the board concluded in its second Sodexo decision “as a matter of policy” that giving employees “as members of the public” off-duty access to a hospital as patients or visitors did not run afoul of the Tri-County standard.

Marina Del Rey's policy, the board members said, “is the same in all material respects as the policy in Sodexo, and it too, is therefore lawful on its face.”

Disparate Enforcement Violated NLRA

The board agreed with the ALJ, however, that the California hospital applied its facially lawful policy in an unlawful manner.

The board members said Marina Del Rey allowed employees to enter the hospital to apply for transfers, to pick up and drop off pay and scheduling documents, and for “attending social events such as retirement parties and wedding or baby showers.”

Applying a lawful policy in such a disparate manner violated Section 8(a)(1) of the act, the board said. The board ordered Marina Del Rey to “cease and desist from applying its off-duty access policy in a disparate treatment that restricts the exercise of Section 7 rights” but did not order the employer to rescind its facially valid policy.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Request Labor & Employment on Bloomberg Law