AMERICAN BAPTIST HOMES OF THE WEST D/B/A PIEDMONT GARDENS

National Labor Relations Board - Board Decisions

May 1, 2014

360 N.L.R.B. 813 (N.L.R.B. 2014)

PIEDMONT GARDENS 813
360 NLRB No. 100
American Baptist Homes of the West d/b/a Piedmont
Gardens and Service Employees International
Union, United Healthcare Workers-West. Cases
32–CA–078124 and 32–CA–080340
May 1, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On January 29, 2013, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Charging
Party filed exceptions, and the Respondent filed an an-
swering brief. In addition, the Respondent filed cross-
exceptions and a supporting brief, the General Counsel
filed an answering brief, which the Charging Party
joined, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions, to adopt his recommended Order as
modified and set forth in full below, and to substitute a
new notice.2
1. We adopt the judge’s conclusion that the Respond-
ent violated Section 8(a)(1) of the Act on April 3, 2012,
by posting a sign in the employee break room prohibiting
union meetings there. The sign stated, in relevant part,
that “[t]he union is not permitted to hold meetings in the
employee break room.” This stated prohibition did not
acknowledge the Union’s right to have access to the Re-
spondent’s premises for certain purposes as stated in the
parties’ expired collective-bargaining agreement. The
sign was therefore overbroad in violation of Section
8(a)(1).3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the violations found, and to the Board’s
standard remedial language and with Durham School Services, 360
NLRB 694 (2014). We shall further modify the judge’s recommended
Order to provide for the posting of the notice in accord with J. Picini
Flooring, 356 NLRB 11 (2010). We deny the Charging Party’s request
for special remedies.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by posting the sign, we note that the Decision and Order in
Turtle Bay Resorts, 353 NLRB 1242 (2009), cited by the judge, was
issued by a two-member Board, but was subsequently affirmed and
adopted by a three-member panel, 355 NLRB 706 (2010). That subse-
quent decision was later enforced by the Fifth Circuit, 452 Fed. Appx.
433 (2011).
The Respondent argues that the sign was not a viola-
tion because it did not actually interfere with employees’
Section 7 rights, noting that union representative Donna
Mapp conversed with an unspecified number of employ-
ees in the break room after it posted the sign. We are not
persuaded by the Respondent’s argument because em-
ployees could not reasonably infer from those conversa-
tions that, contrary to the clear language of the sign, the
Union was permitted to hold meetings in the break room.
2. We further adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by maintaining a poli-
cy prohibiting employees from remaining on its premises
after their shift “unless previously authorized by” their
supervisor.4 Under Tri-County Medical Center, 222
NLRB 1089, 1089 (1976), a rule restricting off-duty em-
ployee access is valid only if it (1) limits access solely
with respect to the interior of the facility and other work-
ing areas, (2) is clearly disseminated to all employees,
and (3) applies to off-duty employees seeking access to
the plant for any purpose and not just to those employees
engaging in union activity. The Respondent’s policy is
unlawful under the third prong of the Tri-County stand-
ard. Although generally prohibiting off-duty access, the

Additionally, we do not rely on Swardson Painting Co., 340 NLRB
179 (2003), cited by the judge. In Swardson Painting, the Board based
its finding that the employer in that case violated Sec. 8(a)(1) by in-
structing a union agent to leave its premises on the fact that the em-
ployer lacked an exclusionary property interest. Here, by contrast, the
Respondent possesses an exclusionary property interest in the break
room.
4 The Respondent’s policy is set forth in Rule 33 in its Chart of In-
fractions and a supplemental memorandum.
Contrary to his colleagues, and for the reasons stated by former
Member Hayes in his dissent in J.W. Marriott Los Angeles at L.A. Live,
359 NLRB 144, 148–149 (2012), Member Miscimarra would find that
a rule may lawfully prohibit off-duty employees from accessing the
interior of a workplace even if the rule contains an exception permitting
access if employees obtain the prior approval of a supervisor or manag-
er or if access is warranted by other unspecified circumstances. Such
an exception reasonably contemplates legitimate business reasons,
which cannot be enumerated in advance, that predictably would warrant
allowing off-duty employees on the premises. Nevertheless, as ex-
plained below in footnote 7, Member Miscimarra finds that the Re-
spondent did violate Sec. 8(a)(1) by applying its off-duty access rule to
restrict the exercise of Sec. 7 rights. To remedy this violation, Member
Miscimarra would order the Respondent to cease and desist from apply-
ing the off-duty access rule to restrict the exercise of Sec. 7 rights. He
would not order the Respondent to rescind the off-duty access rule
because Member Miscimarra would find that the rule is facially lawful.
Member Johnson joins Member Schiffer in finding maintenance of
the rule here unlawful based on its granting a supervisor unlimited and
standardless discretion to determine permissible access to off-duty
employees and, further, the evidence that the Respondent has enforced
the rule specifically to restrict Section 7 activity, which we further find
unlawful here. Member Johnson does not rely on the judge’s citation to
precedent arguably standing for the broad proposition that a rule per-
mitting any limited exception to a uniform prohibition of off–duty
employee access is unlawful.
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent’s policy contains an exception, indefinite in
scope, under which off-duty access is permitted with
supervisory authorization. The vice in such a rule is that
it gives the Respondent “broad—indeed, unlimited—
discretion ‘to decide when and why employees may ac-
cess the facility.’” J.W. Marriott Los Angeles at L.A.
Live, 359 NLRB 144, 144 (2012) (quoting Sodexo Amer-
ica LLC, 358 NLRB 668, 669 (2012) (finding facially
unlawful a handbook rule prohibiting off-duty access
except in unspecified circumstances with prior approval
of a manager)).
The Respondent argues that its access policy is lawful
because, in practice, the Respondent only permitted off-
duty employees to enter the nursing home in three lim-
ited circumstances: when an off-duty employee picked
up her paycheck, attended a scheduled meeting with hu-
man resources representatives, or arrived early for the
night shift. Although the Respondent’s Acting Human
Resources Director, Lynn Morgenroth, testified that the
Respondent permitted off-duty employees to access the
nursing home in those three circumstances, she did not
testify (and the record otherwise fails to establish) that
those were the only circumstances under which supervi-
sors and managers had granted access in the past or had
discretion to grant access. In any event, neither Rule 33
nor the supplemental memorandum informs employees
that supervisors and managers may grant access to off-
duty employees only under the three circumstances iden-
tified by Morgenroth.5 Accordingly, we find Rule 33
unlawful on its face.
We also reject the Respondent’s argument that the Un-
ion “waived any defects” of the policy by successfully
lobbying the Respondent to permit off-duty employees to
access the vestibule for up to an hour prior to the start of
the night shift. Any waiver by a union of its members’
Section 7 rights must be “clear and unmistakable.”
Engelhard Corp., 342 NLRB 46, 47 (2004), enfd. 437
F.3d 374 (3d Cir. 2006). The Union did not clearly and
unmistakably consent to the aspects of the policy that
make it unlawful under Tri-County when it prevailed
upon the Respondent to permit certain off-duty employ-
ees to access the vestibule.6
3. Finally, we agree with the judge that the Respond-
ent violated Section 8(a)(1) of the Act by enforcing its

5 Thus, we need not pass on whether a violation would lie had the
policy clearly provided that off-duty employees would be granted ac-
cess only in the three circumstances described by Morgenroth.
6 Because the Union did not clearly and unmistakably waive its
members’ right to be free of a facially invalid off-duty access re-
striction, we need not decide whether a union is capable of such a
waiver. Cf. NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974)
(holding that union was incapable of waiving its members’ Sec. 7 right
to distribute literature in nonwork areas during nonwork time).
unlawful off-duty access rule on April 16, 2012, against
employees Elizabeth Shoaga and Geneva Henry, who
sought access to the premises to engage in the protected
activity of aiding the Union in presenting employee
complaints to management. In addition to our finding
that the Respondent’s off-duty access policy is unlawful
on its face, the judge correctly found that the Respond-
ent’s enforcement of that policy against two off-duty
employees who were seeking access to aid the Union in
presenting employment-related complaints to manage-
ment reasonably tended to interfere with, restrain, and
coerce employees in the exercise of their rights under
Section 7 of the Act.7
ORDER
The National Labor Relations Board orders that the
Respondent, American Baptist Homes of the West d/b/a
Piedmont Gardens, Oakland, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that the Union is not permit-
ted to hold meetings in the employee break room.
(b) Maintaining a policy that prohibits off-duty em-
ployees from accessing the Respondent’s premises unless
previously authorized by their supervisor.
(c) Enforcing such a rule against off-duty employees
who seek to access the Respondent’s premises to assist
the Union.
(d) In any like or related manner interfering with, re-
straining or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind Rule 33 and supplemental memorandum,
which prohibit off-duty employees from accessing the
Respondent’s premises unless previously authorized by
their supervisor.

7 Although Member Miscimarra disagrees that the off-duty access
rule is facially unlawful, he agrees with his colleagues that the Re-
spondent unlawfully applied it to off-duty employees Shoaga and Hen-
ry. The Respondent’s practice was to permit off-duty employees to
enter the facility to attend scheduled meetings with human resources
representatives. On April 3, the Union and the Respondent scheduled a
meeting for April 16, and they agreed that employees would attend. On
April 16, Shoaga and Henry sought access to join a union agent in
presenting complaints to management about terms and conditions of
employment. Contrary to its practice of permitting off-duty access to
attend scheduled meetings with management, the Respondent applied
its off-duty access rule to prohibit Shoaga and Henry from attending the
scheduled meeting with management accompanied by their union
agent. Under these circumstances, Member Miscimarra finds that the
Respondent applied its off-duty access rule in a discriminatory manner
that restricted the employees’ Sec. 7 activity in violation of Sec.
8(a)(1).
PIEDMONT GARDENS 815
(b) Furnish employees with an insert for the current
Chart of Infractions that (1) advises that Rule 33 has
been rescinded, or (2) provides a lawfully worded provi-
sion on adhesive backing that will cover the unlawful
provision; or publish and distribute to employees a re-
vised Chart of Infractions that (1) does not contain Rule
33, or (2) provides a lawfully worded provision.
(c) Within 14 days after service by the Region, post at
its Oakland, California facility copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since April 3, 2012.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT inform you that the Union is not permit-
ted to hold meetings in the employee break room.
WE WILL NOT maintain a policy that prohibits off-duty
employees from accessing our premises unless previous-
ly authorized by their supervisor.
WE WILL NOT enforce such a rule against off-duty em-
ployees who seek to access our premises to assist the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind Rule 33 and supplemental memoran-
dum, which prohibit off-duty employees from accessing
our premises unless previously authorized by manage-
ment.
WE WILL furnish you with an insert for the current
Chart of Infractions that (1) advises that Rule 33 has
been rescinded, or (2) provides a lawfully worded provi-
sion on adhesive backing that will cover the unlawful
provision; or publish and distribute to you a revised
Chart of Infractions that (1) does not contain Rule 33, or
(2) provides a lawfully worded provision.
AMERICAN BAPTIST HOMES OF THE WEST D/B/A
PIEDMONT GARDENS
The Board’s decision can be found at
www.nlrb.gov/case/32–CA–078124 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273–1940.
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judith J. Chang, for the General Counsel.
David S. Durham and Christopher M. Foster (Arnold & Por-
ter), of San Francisco, California, for Respondent.
Manuel A. Boigues (Weinberg, Roger & Rosenfeld), of Alame-
da, California for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. This case was
tried in Oakland, California on November 13, 2012. On April 4,
2012, Service Employees International Union, United
Healthcare Workers West (the Union) filed the charge in case
32–CA–78124 against American Baptist Homes of the West
d/b/a Piedmont Gardens (Respondent or the Employer). On
May 4, 2012, the Union filed the charge in Case 32–CA–80340
against Respondent. On July 27, 2012, the Union filed amend-
ed charges in both cases. On August 20, 2012, the Regional
Director for Region 32 of the National Labor Relations Board
(the Board) issued a consolidated complaint against Respond-
ent. The complaint alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by deny-
ing access to a representative of the Union, and unlawfully
maintaining and enforcing a rule against off duty employees.
The Respondent filed a timely answer in which it denied that it
had violated the Act.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the briefs submitted by the parties, I make the follow-
ing:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent has been a California non-
profit corporation, engaged in the operation of continuing care
retirement communities, including a facility located in Oakland,
California known as Piedmont Gardens, and a separate facility
also located in Oakland, California known as Grand Lake Gar-
dens. Respondent, in conducting its business operations de-
scribed above, during 12 months prior to the issuance of the
complaint, purchased and received goods at its facilities in
California valued in excess of $5,000 directly from sources
outside the State of California. Further, during the same time
period, Respondent derived gross revenues in excess of
$100,000 from its business operations. Accordingly, the parties
stipulated and I find, Respondent is an employer engaged in
commerce within the meaning of Sections 2(2), (6) and (7) of
the Act.

1 The credibility resolutions here have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings here, their
testimony has been discredited, either as having been in conflict with
credited documentary or testimonial evidence, or because it was in and
of itself incredible and unworthy of belief.
The parties stipulated that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. FACTS
Since at least 2007, the Union has been the exclusive collec-
tive-bargaining representative of an appropriate unit of Re-
spondent’s employees at its Piedmont Gardens and Grand Lake
Gardens facilities. The last agreement between the parties was a
2007–2010 collective-bargaining agreement. The bargaining
unit covered by the agreement is:
All employees performing work described in and covered by
“Section 1, Union, 1.1, Recognition” of the March 1, 2007
through April 30, 2010 collective bargaining agreement be-
tween Piedmont Gardens and Grand Lake Gardens and the
Union (the Agreement); excluding all other employees,
guards, and supervisors as defined in the Act..
This case only involves the Piedmont Gardens facility. Ne-
gotiations for a successor agreement to the 2007 through 2010
agreement last occurred in August 2010 and the parties have
not recommenced negotiations since that time.
Section 1.4 of the expired agreement provides the following
with regards to union access:
A duly authorized Field Representative of the Union shall be
allowed to visit the Home at reasonable times for the purpose
of ascertaining whether or not this Agreement is being ob-
served and to check upon complaints of employees, provided:
3. The Union Field Representative confers with employees
solely on the employee’s free time and on a non-work area;
provided. However, this sub-section shall not be construed so
as to prevent a Union Field Representative from conferring
with an employee and his supervisor or another representative
of the Employer on the Employer’s time in connection with a
specific complaint or problem concerning the employee.
Respondent and the Union have also agreed to “ground
rules” governing the access rights of Union Representative
Donna Mapp as well as future union agents:
2. A duly authorized field representative of the Union will be
allowed to visit the Communities at reasonable times for the
purpose of ascertaining whether the contract is being observed
and to check upon complaints of the members. The parties
understand the field representative may need to access the
Communities during late night or early morning hours to con-
fer with NOIC shift employees.
6. . . . . And the field representative shall have access in em-
ployees’ break rooms.
Union Representative Donna Mapp testified that she has held
numerous meetings with employees in the break room. These
meetings have varied in times from as many as every day to
once a week depending on the issue involved and have in-
volved different sized groups of employees, ranging from a low
of 3–4 to a high of 15 employees. Typically during these meet-
ings Mapp sat on a chair at a table in the break room. Employ-
ees who wished to speak with her would gather around the
same table. Mapp used different methods of notifying unit
employees of these meetings.
PIEDMONT GARDENS 817
On April 2, 2012, Mapp posted a flyer on the union bulletin
board in the break room at Respondent’s facility announcing to
employees that she planned on being in the break room on
April 3, to meet with employees. The notice stated:
Join Us For
Union Meeting
Some individuals are jeopardizing our future and we need to
come together to discuss next steps and how we can put an
end to the confusion.
Please join us for an informational meeting and to learn how
we can take back our union and our signature.
Mapp testified that she intended to discuss many issues at
this meeting including the contract, benefits, treatment of
workers as well as rumors about support of a rival union. On
cross-examination, Mapp admitted that one of the purposes of
the meeting was to discuss the issue of employees taking back
authorization cards they had signed on behalf of a rival union.
On the morning of April 3, Mapp arrived at Respondent’s fa-
cility at approximately 6:30 a.m. After checking in, she headed
towards the break room. Mapp was met by Gayle Reynolds,
Respondent’s executive director. Reynolds asked why Mapp
was having a meeting and pointed to the union flyer. Reynolds
told Mapp that she could not have a union meeting. Mapp ex-
plained that she and the employees were allowed to meet in the
break room. Reynolds stated that Mapp could not have this
type of meeting. Reynolds then went to her office.
Reynolds then created a sign stating, “NO UNION
MEETING HERE. The Union is not permitted to hold meet-
ings in the break room.” At about 9:30 a.m. Reynolds posted
the sign on the bulletin board. However, Mapp remained in the
break room and continued to talk to small groups of employees
on their breaks.
Reynolds testified that she believed that the flyer indicated
that two union representatives would be present and that the
purpose of the meeting was not contract issues but rather a
union meeting to discuss the rival union.
Respondent maintains a rule that states:
Employees may not clock in for duty before their shift begins,
nor are they to remain on the grounds after the end of their
shift, unless previously authorized by their supervisor. Em-
ployees must have prior supervisor authorization before work-
ing/incurring overtime.
This rule was reaffirmed by a September 2011 memorandum
from Rita Jennings, Respondent’s administrative manager,
which reads:
No employees are allowed inside the building when not
scheduled to work unless they have prior approval of their su-
pervisor/manager, Human Resources, or the Executive Direc-
tor.
However, Respondent has permitted off-duty employees to
access the facility for meetings with Human Resources. Off
duty employees are permitted to enter the employee entrance to
pick up their paychecks at the security desk.
On April 3, Mapp emailed Lynn Morgenroth, Respondent’s
human resources director, and requested a meeting. A meeting
was set for April 16 to discuss various issues. In an email of
April 13, Mapp requested that off-duty employees be allowed
to attend the meeting. On April 16, Morgenroth responded that
“Employees that are not scheduled to work may not attend
these meetings.”
Mapp received Morgenworth’s email about an hour before
the scheduled meeting. Mapp telephoned Morgenworth and
advised Morgenworth that she had two off-duty employees
with her who would be coming to the meeting. Morgenworth
stated that the off-duty employees would not be allowed to
enter the premises. Mapp stated that the two employees were
already with her and were on their way. Morgenworth told
Mapp to get off the phone and notify the off-duty employees
that they were not allowed in the building. Morgenworth stated
that the two off-duty employees with Mapp would not be al-
lowed to enter the building.
After the conversation with Morgenworth, Mapp along with
off-duty employees Elizabeth Shoaga and Geneva Henry went
to Piedmont Gardens. They announced their arrival at the secu-
rity desk and signed in at approximately 10 a.m. Morgenworth
arrived and told the two employees that they were not on duty
and would not be allowed in the building. The employees then
left.
Morgenworth asked to have the meeting but Mapp stated that
she didn’t want to meet without the employees.
Respondent’s defense
Respondent argues that the Union had no statutory right to
hold a union meeting in Respondent’s break room. Respondent
further argues that its off-duty access rule is valid under Tri-
County Medical Center 222 NLRB 1089 (1976).
III. CONCLUSIONS
Reynolds Posting of the Sign on April 3
Board law is well-settled that a union’s access to represent
employees on an employer’s premises is a mandatory subject of
bargaining. American Commercial Lines, 291 NLRB 1066,
1072 (1988). In addition, a union access provision in a collec-
tive-bargaining agreement is a term and condition of employ-
ment that survives the agreement’s expiration. Turtle Bay Re-
sorts, 353 NLRB 1242 (2009).
Under the contract, Mapp had a right to be in the break room
to meet with employees. Mapp had the right to meet with em-
ployees to monitor the agreement and to check upon complaints
of employees. Reynolds never inquired from Mapp what her
intentions for the meeting were. She wrote the sign prohibiting
the union meeting based on the assumption that the meeting
was to discuss the drive by the rival union. However, the pur-
poses of the meeting included employee concerns about the
status of the Union as well as the contract and employee bene-
fits. By posting the sign, “No Union Meeting Here,” Respond-
ent interfered with the Union’s right to access in violation of
Section 8(a)(1). See Swardson Painting Co., 340 NLRB 179
(2003).
Respondent’s Off-Duty Access Rule
In Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board held that a rule denying off-duty employees access to an
employer’s premises is lawful if it: (1) limits access solely with
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
respect to the interior of the plant and other working areas; (2)
is clearly disseminated to all employees; and (3) applies to off-
duty employees seeking access to the plant for any purpose and
not just to those employees engaging in union activity.
In Saint John’s Health Center, 357 NLRB 2078 (2011), the
Board invalidated an employer’s access policy because it pro-
vided an ambiguous (and wholly undefined) exception for
“health-center sponsored events.” The Board interpreted this
policy to mean “[i]n effect, the Respondent is telling its em-
ployees, you may not enter the premises after your shift except
when we say you can.”
Similarly in Sodexo America, 358 NLRB 668 (2012), the
Board invalidated an employer’s “ambiguous” no access policy
that provided an exception for “hospital related business”
which the Board interpreted to mean that the employer had
“free reign to set the terms of off-duty employee access.”
Here the rule’s exception is “prior approval of their supervi-
sor/manager, Human Resources, or the Executive Director.”
This exception provides the employer with unlimited discretion
and thus is invalid under Tri-County Medical Center.
On April 16, Respondent applied the invalid access rule to
employees Shoaga and Henry and did not permit the employees
to attend a meeting with management. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by posting
a notice which prohibited a union meeting in its break room.
4. Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing an off-duty access rule which granted it
unlimited discretion to permit access.
5. Respondent violated Section 8(a)(1) by denying access to
two off-duty employees to its premises for a union-
management meeting.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.2

2 All motions inconsistent with this recommended order are hereby
denied. In the event no exceptions are filed as provided by Sec. 102.46
ORDER
Respondent, American Baptist Homes of the West d/b/a
Piedmont Gardens, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Posting notices prohibiting union access to its break
room to hold meetings with employees.
(b) Maintaining and enforcing an off-duty access rule which
limits off-duty employees’ access to the facility for some pur-
poses while permitting access for other purposes.
(c) Enforcing its off-duty access rule to deny employees ac-
cess to a union-employer meeting.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the off-duty access policy to the extent that it
permits off-duty employees access to the facility for some pur-
poses while barring off-duty access for other purposes.
(b) Within 14 days after service by the Region, post at its
facility in Oakland, California, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 2012.
(c) 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.

of the Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”