NOTICE: This opinion is subject to formal revision before
publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Crowne Plaza Hotel and
April 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
The General Counsel seeks summary judgment in this case on the ground that there are no genuine issues of material fact as to the allegations of the complaint, and that the Board should find, as a matter of law, that the Respondent has violated Section 8(a)(1) of the Act by maintaining seven unlawful rules in its employee handbook.[1]
Pursuant to a charge filed by Rochester Regional Joint Board UNITE HERE (Union) on July 27, 2006, as amended on August 22 and September 28, 2006, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on September 28, 2006, alleging that the Respondent, Crowne Plaza Hotel, has violated Section 8(a)(1) of the Act by maintaining rules in its employee handbook that interfere with, restrain, and coerce employees in the exercise of their Section 7 rights. The General Counsel amended the complaint on November 9, 2006. The Respondent filed answers to the complaint and amended complaint, denying the commission of any unfair labor practices and raising an affirmative defense.
On December 27, 2006, the General Counsel filed a motion to transfer the case to the Board and for summary judgment, and a memorandum in support. On January 3, 2007, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the Motion for Summary Judgment should not be granted. On January 16, 2007, the Respondent filed a brief in opposition to the General Counsel’s Motion for Summary Judgment and a cross-motion to dismiss the complaint. On February 7, 2007, the General Counsel filed a reply brief.[2]
Ruling on Motion for Summary Judgment[3]
The complaint alleges that since about July 1, 2006, the Respondent has maintained the following rules in its employee handbook:
No Solicitation/No Distribution
The conducting of non-company business, such as canvassing, collection of funds, pledges, circulation of petitions, solicitation of memberships, or any other similar types of activity is not permitted during the working time of either the employees to whom non-company literature is being distributed, or any time in working areas or in customer and public areas.[4]
. . . .
EMPLOYEE USE OF HOTEL FACILITIES
You should only be at the hotel during scheduled work hours. When you have punched out at the end of your shift, please leave the building promptly. Any employee caring to visit the hotel during non-work hours must first obtain permission from the General Manager. If an employee would like to patronize any of the food and beverage outlets, they may do so only with the prior permission of the General Manager.
. . . .
PRESS RELEASE AND NEWS MEDIA
Should any incident occur that generates significant public interest or press inquiries, all press releases and other statements of information will be handled by the General Manager, or designated representative by [sic] the General Manager. Under no circumstances will statements or information be supplied by any other employee.
. . . .
DISCUSSING COMPANY BUSINESS
Whenever you are on duty in or around the hotel, it is important not to discuss company business or work difficulties in front of guests. Your primary concern at all times is guest satisfaction. Problems or concerns should be addressed by following the steps outlined in the Fair Treatment section of this handbook.[5]
. . . .
EMPLOYMENT CONDUCT POLICY
The Crowne Plaza–Rochester expects that its employees always conduct themselves in a manner that is in the best interest of the company, our guests, the community and co-workers. Any violation of the rules and regulations, policies and procedures of this company may result in disciplinary action or termination.
Examples of conduct that are not permitted
2. Leaving your work area without authorization before the completion of your shift[.]
33. Walking off the job.
38. Insightful[6] [inciteful] actions against fellow employees, supervisors or department heads.
The complaint further alleges that by maintaining these rules in
its employee handbook the Respondent has violated Section 8(a)(1). In its answer, the Respondent admits that it
maintained the alleged unlawful rules, but denies the allegation that it
violated the Act.
We find that there are no
material issues of fact warranting a hearing because the
Respondent admits that it has maintained the alleged unlawful rules in its employee
handbook since at least July 1, 2006, and that the handbook is given to every
employee at the time of hire. For the reasons set forth
below, we grant the General Counsel’s motion as to the following rules: “No
Solicitation/No Distribution,” “Press Release and News Media,” “Leaving your
work area without authorization before the completion of your shift,” “Walking
off the job,” and “[Inciteful] actions against fellow employees, supervisors,
or department heads.”[7] As to the other alleged unlawful rules—“Employee
Use of Hotel Facilities” and “Discussing Company Business”—we deny the General
Counsel’s motion and dismiss the complaint.
The analytical framework for determining whether the maintenance of a work rule violates Section 8(a)(1) was set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004):
[A]n employer violates Section
8(a)(1) when it maintains a work rule that reasonably tends to chill employees
in the exercise of their Section 7 rights.
Lafayette Park Hotel, 326 NLRB
824, 825 (1998). In determining whether
a challenged rule is unlawful, the Board must, however, give the rule a reasonable
reading. It must refrain from reading
particular phrases in isolation, and it must not presume improper interference
with employee rights.
If the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.[8]
The General Counsel argues that the alleged unlawful rules explicitly restrict Section 7 activity or employees would reasonably construe them to prohibit Section 7 activity. The General Counsel does not contend that the rules were initiated in response to any union and/or protected concerted activity or that any employee has been disciplined under the rules for engaging in union and/or protected concerted activity.
A. No Solicitation/No Distribution
This rule provides, in pertinent part:
The conducting of non-company business, such as canvassing, collection of funds, pledges, circulation of petitions, solicitation of memberships, or any other similar types of activity is not permitted during the working time of either the employees to whom non-company literature is being distributed, or any time in working areas or in customer and public areas.
The General Counsel contends that the no-solicitation/no-distribution rule is unlawfully overbroad because it prohibits off-duty employee solicitation and distribution not only in the “working areas” of the hotel, but also at “any time” in its “customer and public areas.”
In Double Eagle
Hotel & Casino, 341 NLRB 112 (2004), enfd. as modified 414 F.3d 1249
(10th Cir. 2005), cert. denied 546
Never discuss Company issues, other employees, and personal problems to or around our guests. Be aware that having a conversation in public areas with another employee will in all probability be overheard.[9]
The Board viewed this rule, which prohibited employees from discussing working conditions, as analogous to a no-solicitation rule and evaluated its lawfulness by applying the framework utilized by the Board to assess the legality of employee no-solicitation rules in the retail industry:
Over the years, the Board has carved out, for certain industries, special rules for assessing the legality of employee no-solicitation rules. In the retail industry, for example, the Board has held that because active solicitation in a sales area may disrupt a retail store’s business, an employer legally may prohibit solicitation by employees on the selling floor even during the nonworktime of the employees. J.C. Penney Co., 266 NLRB 1223 (1983); Marshall Field & Co., 98 NLRB 88 (1952). But as stated in McBride’s of Naylor Road, [229 NLRB 795 (1977),] in applying this precedent, the Board “has not allowed the restrictions on solicitation . . . to be extended beyond that portion of the store which is used for selling purposes,” such as public restrooms and restaurants.[[10]]
Gambling casinos, such as the one that the Respondent operates, have long been considered akin to retail stores for purposes of assessing the legality of employee no-solicitation rules. Dunes Hotel, 284 NLRB 871, 875 (1987); Santa Fe Hotel & Casino, 331 NLRB 723, 729 (2000). Thus, as with a retail store’s selling floor, the Respondent lawfully could prohibit employees from soliciting each other and discussing their working conditions in the casino’s gambling areas, and adjacent aisles and corridors frequented by customers, but it could not lawfully maintain a general ban on that activity beyond that area.[11]
The Board likened the casino’s gambling areas to the selling floor of a retail store and found that the respondent’s customer service rule “prohibited discussions in ‘public areas,’” including parking lots and restrooms.[12] So read, the Board concluded that the rule violated the Act “at least to the extent that it bars discussion in places outside the gaming area, such as, . . . restrooms, public bars and restaurants, sidewalks and parking lots.”[13]
The Respondent argues that a hotel—unlike a casino, restaurant, or retail store—lacks specific, identifiable customer service areas and therefore the maintenance of a rule prohibiting solicitation and distribution in all areas open to customers is necessary “to curtail employees from interrupting customer satisfaction.” While we recognize that a hotel has some service areas that are not easily identifiable, the Respondent’s interest in customer service does not entitle it to designate all public areas of its facility—including parking areas, sidewalks, and public restrooms—to be “guest service areas” in which off-duty employees cannot exercise their Section 7 rights under any circumstances (i.e., even when no guests are present).
For instance, in Santa Fe Hotel & Casino, supra, the Board held that the respondent hotel-casino violated Section 8(a)(1) by enforcing its no-distribution/no-solicitation rule to prohibit its off-duty employees from distributing literature at the main entrances to its facility. In its reasoning, the Board commented that “the occurrence of nonproduction work activity on part of an employer’s property does not, by itself, allow an employer to declare its entire property to be a ‘working area’ for the purpose of excluding employee solicitation activity.”[14] Similarly, in Flamingo Hilton-Laughlin, 330 NLRB 287, 288 (1999), the Board adopted the judge’s finding that a hotel violated Section 8(a)(1) by maintaining a rule that prohibited off-duty employees from soliciting or distributing in “public areas” of its facility other than gaming areas. The Respondent’s no-solicitation/no-distribution rule, to the extent that it prohibits off-duty employee solicitation and distribution at “any time” in “customer and public areas,” suffers from the same infirmities identified in these prior Board decisions, and is unlawfully overbroad.
B. Employee Use of Hotel Facilities
This rule provides:
You should only be at the hotel during scheduled work hours. When you have punched out at the end of your shift, please leave the building promptly. Any employee caring to visit the hotel during non-work hours must first obtain permission from the General Manager. If an employee would like to patronize any of the food and beverage outlets, they may do so only with the prior permission of the General Manager.
The General Counsel contends that the employee use of hotel
facilities rule is unlawful because, without justification, it denies off-duty
employees entry to the outside nonworking areas of the Respondent’s property.[15] Additionally, the General Counsel contends
that this rule is unlawful because it allows the general manager to select
which off-duty employees may use the facilities and thus “it is not uniformly applied
to all off-duty employees seeking access to Respondent’s hotel.”
In our view, employees would not reasonably construe the Respondent’s employee use of hotel facilities rule as denying off-duty employees access to the Respondent’s parking areas and other outside nonworking areas. The rule’s second sentence requires that employees leave only “the building” at the end of their shift. Reading the remainder of the rule in this context, the rule limits off-duty employees’ access to the hotel “building,” not the entire premises, including parking areas and other outside nonworking areas.[16]
The final sentence of the rule, which requires permission to patronize the food and beverage outlets, is similar to a rule which the Board found lawful in Lafayette Park Hotel, supra. In that case, the handbook provided: “Employees are not permitted to use the restaurant or cocktail lounge for entertaining friends or guests without the approval of the department manager.”[17] The Board found that “a reasonable employee would not interpret this rule as requiring prior approval for Section 7 activity.” The Board noted that the rule “does not mention or in any way implicate Section 7 activity” and there are “legitimate business reasons” for a rule requiring employees to obtain permission before entertaining friends or guests at the hotel.[18] Here, too, the rule does not mention Section 7 activity and there are legitimate business reasons for a rule requiring employees to obtain permission before patronizing the food and beverage outlets.[19] Accordingly, the Respondent did not violate Section 8(a)(1) by maintaining such a rule.[20]
C. Press Release and News Media
This rule provides:
Should any incident occur that generates significant public interest or press inquiries, all press releases and other statements of information will be handled by the General Manager, or designated representative by [sic] the General Manager. Under no circumstances will statements or information be supplied by any other employee.
The General Counsel contends that the Press Release and
News Media rule is unlawful because it prohibits employees from communicating
with the media concerning their terms and conditions of employment. The Respondent argues that reasonable
employees would not interpret the rule so broadly and that the intent of this
rule is to inform employees that “only the General Manager may disseminate
The rule applies to “any incident” generating “significant public interest or press inquiries.” The term “significant public interest” is broad enough to encompass a labor dispute, such as a walk-out or strike. A rule that prohibits employees from exercising their Section 7 right to communicate with the media regarding a labor dispute is unlawful.[21] The determinative question, then, is whether the rule prohibits employees from communicating with the news media about such matters or merely states that employees cannot speak on behalf of the Respondent in response to media inquiries about such matters. The rule does not expressly state, and in our view it does not necessarily imply, that the prohibition on providing statements or information to the media applies only when the media seeks the Respondent’s “official comments.” On the contrary, the rule’s second sentence would reasonably be construed as prohibiting all employee communications with the media regarding a labor dispute: “Under no circumstances will statements or information be supplied [to the media] by [anyone other than the General Manager or his designated representative].” At the very least, the second sentence renders the rule ambiguous, and as such it is susceptible to the reasonable interpretation that it bars Section 7 activity. Because it is facially overbroad, the Respondent’s maintenance of the press release and news media rule violates Section 8(a)(1).
D. Discussing Company Business
This rule provides:
Whenever you are on duty in or around the hotel, it is important not to discuss company business or work difficulties in front of guests. Your primary concern at all times is guest satisfaction. Problems or concerns should be addressed by following the steps outlined in the Fair Treatment section of this handbook.
The General Counsel argues that the discussing company business rule violates the Act because it “requires employees to use the Employer’s Fair Treatment procedure to address work problems” and “employees may reasonably conclude that they may not discuss problems with coworkers or other outside entities, such as a union or the media.” We disagree with the General Counsel and find that this rule does not violate Section 8(a)(1).
This rule does not require employees to first bring any work-related complaints to the company; it merely states that problems or concerns “should” be addressed through the fair treatment procedure. Although the rule encourages employees to use the fair treatment procedure to address their problems or concerns, it neither forecloses them from using other avenues (e.g., fellow employees, a union, or the NLRB), nor requires them to go to management before using other avenues. The General Counsel does not allege that the provision ever has been applied to foreclose such access. Therefore, employees would not reasonably understand this rule to forbid them from bringing their work-related problems or concerns to persons or entities other than the Respondent.[22]
Nor would employees reasonably conclude that they may not discuss problems with coworkers or outside entities, such as a union or the media. Although the rule’s first sentence provides that “it is important” not to discuss “company business or work difficulties in front of guests,” this guideline pertains only to the employees’ working time (“Whenever you are on duty”).[23]
E. Employment Conduct Policy
This section of the employee handbook includes the following rules:
The Crowne Plaza–Rochester expects that its employees always conduct themselves in a manner that is in the best interest of the company, our guests, the community and co-workers. Any violation of the rules and regulations, policies and procedures of this company may result in disciplinary action or termination.
Examples of conduct that are not permitted
2. Leaving your work area without authorization before the completion of your shift[.]
33. Walking off the job.
38. Insightful [sic] actions against fellow employees, supervisors or department heads.
The General Counsel contends that Rules 2 and 33 are
unlawful because employees would reasonably construe them as prohibiting a
“mid-shift strike.” The Respondent
argues that “[g]iven the number of employees working throughout the Hotel in
various capacities and with varying degrees of oversight, these rules are
critical to [its] ability to ascertain that its employees are dutifully performing their assigned tasks.”
Under
Board law, “[i]t is well established that employees who concertedly refuse to
work in protest over wages, hours, or other working conditions, including
unsafe or unhealthy working conditions, are engaged in ‘concerted activities’
for ‘mutual aid or protection’ within the meaning of Section 7 of the Act.”[24] Rules 2 and 33 are unlawfully overbroad
because an employee would reasonably read these rules as, respectively, requiring
management’s permission before engaging in such protected concerted activity,
thereby allowing management to abrogate the Section 7 right to engage in such
activity,[25] or altogether prohibiting
employees from exercising their Section 7 right to engage in such protected
concerted activities.[26]
The Board’s decision in Wilshire at Lakewood, 343 NLRB 141 (2004), vacated in part 345 NLRB
1050 (2005), reversed and remanded sub. nom. Jochims v. NLRB, 480 F.3d 1161 (D.C. Cir. 2007), upon which the
Respondent relies, is distinguishable.
In Wilshire at Lakewood, the
Board found that the employer did not violate Section 8(a)(1) by maintaining a
handbook rule prohibiting employees from “abandoning your job by walking off
the shift without permission of your supervisor or administrator.”[27] The employer operated a nursing home with
many sick or infirm elderly patients; its “mission” was “to ensure adequate
care for its patients.”[28] The Board held that considering the rule in
this context, “employees would necessarily read the rule as intended to ensure
that nursing home patients are not left without adequate care during an
ordinary workday,” which the Board characterized as “imminent danger,” and,
therefore, the rule was not unlawful.[29] In the instant case, arising in the hotel
industry, the Respondent’s managerial interest in “ascertain[ing] that its
employees are dutifully performing their assigned tasks” is not comparable to
the risk of “imminent danger” to patients who are incapable of caring for
themselves that warrants a broader no walk-off rule in the nursing home
industry. Accordingly, Rules 2 and 33
are unlawfully overbroad.
Turning to Rule 38, the General Counsel contends that this rule unlawfully prohibits employees from inciting any protected concerted activity. The Respondent argues that its prohibition of “[inciteful] actions against fellow employees, supervisors or department heads” is intended to ensure a pleasant environment for its guests and that reasonable employees would recognize the rule’s objective as solely “to ensure a ‘civil and decent’ workplace, not to restrict Section 7 activity.”
In Palms Hotel &
Casino, 344 NLRB 1363, 1367 (2005), the Board found lawful a rule that
prohibited “any type of conduct, which is or has the effect of being injurious,
offensive, threatening, intimidating, coercing, or interfering with fellow Team
Members or patrons.” In so finding, the
Board reasoned, in part, that the rule is not “so amorphous that reasonable
employees would be incapable of grasping the expectation that they comport
themselves with general notions of civility and decorum in the workplace.”
We believe the holding in Palms Hotel & Casino is dispositive. Rule 38’s prohibition of “[inciteful] actions” against supervisors and department heads is vague. To “incite” means “to move to a course of action: stir up: spur on: urge on.”[30] Rule 38 does not merely prohibit employees from inciting violent, threatening, or uncivil behavior but extends more broadly to bar them from inciting “actions.” Although rule 38 forbids incitement against individuals, not the Respondent itself, the rule’s prohibition of such conduct against supervisors and department heads would, in our view, be reasonably construed as prohibiting employees from exercising their Section 7 right to initiate or induce group action.[31] Accordingly, rule 38 is unlawfully overbroad.[32]
On the entire record, the Board makes the following
Findings of Fact
i. jurisdiction
At all material times, the Respondent, a corporation with
an office and place of business in Rochester, New York, has been engaged in the
operation of a hotel providing food and lodging. In conducting its business operations
described above, the Respondent annually derives gross revenues in excess of
$500,000 and purchases and receives at its
ii. alleged
unfair labor practices
Since about July 1, 2006, the Respondent, by its employee handbook issued to all employees, has maintained the following rules:
No Solicitation/No
Distribution
The conducting of non-company business, such as canvassing, collection of funds, pledges, circulation of petitions, solicitation of memberships, or any other similar types of activity is not permitted during the working time of either the employees to whom non-company literature is being distributed, or any time in working areas or in customer and public areas.
. . . .
PRESS RELEASE AND
NEWS MEDIA
Should any incident occur that generates significant public interest or press inquiries, all press releases and other statements of information will be handled by the General Manager, or designated representative by [sic] the General Manager. Under no circumstances will statements or information be supplied by any other employee.
. . . .
EMPLOYMENT CONDUCT
POLICY
The Crowne Plaza–Rochester expects that its employees always conduct themselves in a manner that is in the best interest of the company, our guests, the community and co-workers. Any violation of the rules and regulations, policies and procedures of this company may result in disciplinary action or termination.
Examples of conduct that are not permitted
2. Leaving your work area without authorization before the completion of your shift[.]
33. Walking off the job.
38. Insightful [sic] actions against fellow employees, supervisors or department heads.
Conclusion of Law
By engaging in the conduct described above, the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, and has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has violated Section 8(a)(1) of the Act, we shall order it to cease and desist, to rescind its unlawful rules and remove them from its employee handbook, and to advise employees in writing that its unlawful rules are no longer being maintained.[33]
ORDER
The National Labor Relations Board orders that the
Respondent, Crowne Plaza Hotel,
1. Cease and desist from
(a) Maintaining the following No Solicitation/No Distribution rule in its employee handbook:
The conducting of non-company business, such as canvassing, collection of funds, pledges, circulation of petitions, solicitation of memberships, or any other similar types of activity is not permitted during the working time of either the employees to whom non-company literature is being distributed, or any time in working areas or in customer and public areas.
(b) Maintaining the following press release and news media rule in its employee handbook:
Should any incident occur that generates significant public interest or press inquiries, all press releases and other statements of information will be handled by the General Manager, or designated representative by [sic] the General Manager. Under no circumstances will statements or information be supplied by any other employee.
(c) Maintaining the following employment conduct rules in its employee handbook:
Examples of conduct that are not permitted
2. Leaving your work area without authorization before the completion of your shift[.]
33. Walking off the job.
38. Insightful actions against fellow employees, supervisors or department heads.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the employee handbook’s no-solicitation/no-distribution rule, the press release and news media rule, and employment conduct rules 2, 33, and 38.
(b) Furnish all current employees with inserts for the current employee handbook that (1) advise employees that the unlawful rules have been rescinded, or (2) provide the language of lawful rules; or publish and distribute revised employee handbooks that (1) do not contain the unlawful rules, or (2) provide the language of lawful rules.
(c) Within 14 days after service by the Region, post at
its facilities in
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not maintain the following no-solicitation/no-distribution rule in our employee handbook:
The conducting of non-company business, such as canvassing, collection of funds, pledges, circulation of petitions, solicitation of memberships, or any other similar types of activity is not permitted during the working time of either the employees to whom non-company literature is being distributed, or any time in working areas or in customer and public areas.
We will not maintain the following press release and news media rule in our employee handbook:
Should any incident occur that generates significant public interest or press inquiries, all press releases and other statements of information will be handled by the General Manager, or designated representative by [sic] the General Manager. Under no circumstances will statements or information be supplied by any other employee.
We will not maintain the following employment conduct rules in our employee handbook:
Examples of conduct that are not permitted
2. Leaving your work area without authorization before the completion of your shift[.]
33. Walking off the job.
38. Insightful [sic] actions against fellow employees, supervisors or department heads.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you in Section 7 of the Act.
We will rescind the rules set forth above from the employee handbook.
We will furnish all of you with inserts for the current
employee handbook that (1) advise you that the unlawful rules have been rescinded,
or (2) provide the language of lawful rules; or publish and distribute revised
employee handbooks that (1) do not contain the unlawful rules, or (2) provide
the language of lawful rules.
Crowne Plaza Hotel