04/01/2024: Amazon's Illegal Off-Duty Access Rule.
Employers cannot discretionarily restrict premises access to off-duty employees.
Amazon.com Services LLC, 373 NLRB No. 40, 09-CA-298870 (Published Board Decision). Amazon violated Section 8(a)(1) of the National Labor Relations Act by promulgating and maintaining an unlawful work rule restricting the access rights of its off-duty employees. The rule provided that Amazon reserved the right to depart from the off-duty access policy when it deemed appropriate, granting Amazon discretion to decide when and why off-duty employees could access its facilities. Under the Tri-County Medical Center test, an off-duty access rule is valid only if it (1) limits access solely to the interior of the facility and other working areas, (2) is clearly disseminated to all employees, (3) applies to off-duty employees seeking access for any purpose, not just those engaging in union activity. In this case, Amazon's policy failed the third prong because it reserved the right for Amazon to depart from the off-duty access restrictions as it deemed appropriate. This gave Amazon broad discretion to selectively permit access, rather than uniformly prohibiting access regardless of the purpose. The Board found such employer discretion rendered the rule unlawful, as it could allow discriminatory restriction of access based on union activity. An off-duty access policy cannot give the employer unlimited discretion to decide when and why to allow access.
The Bridgespan Group, Inc., 01-RC-323236 (Regional Election Decision). The Regional Director dismissed a representation petition filed by Office and Professional Employees International Union, Local 6 seeking to represent certain employees at the Employer's three US locations. The decision found that consultants should be excluded from the unit as statutory supervisors based on their authority to assign significant overall duties to associate consultants. It further found the petitioned-for unit was not appropriate under the Board's American Steel Construction standard because it was not readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors. Rather, the petitioned-for unit represented an arbitrary grouping of classifications with no coherent organizing principle, including only some of the Employer's non-professional employees across locations and departments while excluding others who performed virtually identical work. With no readily identifiable alternate unit desired by the Petitioner encompassing the parties' agreed-upon inclusions and exclusions, the Regional Director dismissed the petition.
SSA Terminals, LLC, 373 NLRB No. 39, 19-CD-303801 (Published Board Decision). This is a case involving a jurisdictional dispute between two unions, i.e. a case where two unions claim to have a contractual right to a specific bit of work being done by an employer that each of the unions has an agreement with. The disputed work in this case was cold ironing work at the Port of Seattle. The Board relied on the factors of collective-bargaining agreements, employer preference, and area practice to award the work to ILWU rather than IAM.