Tales of the Red Tape #37: NLRB Wrongs Property Rights

Diane Katz /

One might reasonably assume that a legal corporation on American soil—in this case, Marriott—would have the right to decide when and where off-duty employees can access its property. You know, land of the free and all that.

Well, think again.

The National Labor Relations Board (NLRB) last month actually invalidated the hotel chain’s “Employee Access Rule” because management could grant exceptions to the general prohibition against off-duty employees on the premises. The supposedly objectionable policy stated:

Employees are not permitted in the interior areas of the Property more than fifteen minutes before or after their work shift. Occasionally, circumstances may arise when you are permitted to return to interior areas of the Property after your work shift is over or on your days off. On these occasions, you must obtain prior approval from your manager. Failure to obtain prior approval may be considered a violation of Company policy and may result in disciplinary action. This policy does not apply to parking areas or other outside nonworking areas.

There are obvious and legitimate reasons for such a policy, of course: to prevent injury, reduce liability, and maintain security. Not to mention that quaint principle referred to as “property rights.” All of which evidently pale in importance to unfettered union access to the workplace.

In the opinion of NLRB members Mark Gaston and Sharon Block, Marriott’s access policy “would reasonably lead employees to believe that their Section 7 activity in the interior areas of the hotel is prohibited without prior managerial approval.” (Section 7 refers to the provision of the National Labor Relations Act that defines workers’ rights to organize and bargain collectively.)

In his dissent, and to his credit, NLRB member Brian Hayes chastised the majority for “dismantling” the balance between employers’ property rights and union activities, adding that “to prohibit all access in order to prohibit any makes it virtually impossible for an employer to draft an enforceable rule restricting off-duty employee access.”