Marriott International, Inc., d/b/a J.W. Marriott Los Angeles at L.A. Live

144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 359 NLRB No. 8 Marriott International, Inc. d/b/a J.W. Marriott Los Angeles at L.A. Live and UNITE HERE! Local 11. Case 21–CA–039556 September 28, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND BLOCK On July 22, 2011, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respond- ent filed exceptions and a supporting brief, the General Counsel and the Charging Party each filed answering briefs, 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 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.1 This case involves the legality of workplace rules promulgated, revised, and maintained by the Respondent at its J.W. Marriott hotel at L.A. Live, an entertainment destination in Los Angeles. The access rule and its revi- sion prohibit off-duty employee access to interior areas of the hotel (the original rule) or to hotel property (the revised rule) without managerial approval. The use rule and its revision prohibit employee use of various guest and resident owner facilities without managerial approv- al. Because the original rules were never formally re- scinded, we evaluate both the original and revised rules. The judge found that each of the challenged rules was unlawful. We agree with the judge, but, in light of our colleague’s dissent and relevant precedent that issued after the judge’s decision, we explain our reasoning be- low. A. The Respondent’s Access Rules We evaluate the Respondent’s access rules under the well-established test of Tri-County Medical Center, 222 NLRB 1089 (1976). Under Tri-County, a rule restricting off-duty employee access is valid only if it (1) limits access solely with respect to the in- terior 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 pur- 1 We shall modify the judge’s recommended Order in accordance with our decision in Excel Container, Inc., 325 NLRB 17 (1997), and to conform to the Board’s standard remedial language in employer unfair labor practice cases; and we shall substitute a new notice to conform to the modified Order. pose and not just to those employees engaging in union activity. Id. at 1089. “[E]xcept where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid.” Id. 1. The original access rule The Respondent’s original rule restricting off-duty employee access states as follows: Returning to Work Premises Associates are not permitted in the interior areas of the hotel 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 hotel 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 ar- eas. Under Tri-County, as applied in our recent decisions in Saint John’s Health Center, 357 NLRB 2078 (2011), and Sodexo America LLC, 358 NLRB 668 (2012), this rule is unlawful. In those decisions, we found that policies barring off-duty employees’ access to the employer’s facility except for employer-sponsored events (in Saint John’s Health) or for hospital-related business (in Sodexo) violated the Act under the third prong of the Tri-County test because the policies did not “uniformly prohibit access to off-duty em- ployees seeking entry to the property for any purpose.” Saint John’s Health Center, supra, slip op. at 2082 (empha- sis added); Sodexo America LLC, supra, slip op. at 669 (em- phasis added). Similarly, here, the Respondent’s rule is not a uniform prohibition of access; rather, it prohibits off-duty employee access except in certain unspecified circumstanc- es subject to a manager’s “prior approval,” giving the Re- spondent broad—indeed, unlimited—discretion “to decide when and why employees may access the facility.” Sodexo America LLC, supra, slip op. at 669. See Saint John’s Health Center, supra, slip op. at 2082 (“In effect, the [r]espondent is telling its employees, you may not enter the premises after your shift except when we say you can.”). For essentially the same reason, the Respondent’s rule also runs afoul of the general test applied by the Board to workplace rules under Lutheran-Heritage Village- Livonia, 343 NLRB 646, 646–647 (2004). The original access rule “reasonably tends to chill employees in the exercise of their Section 7 rights” because—although the J.W. MARRIOTT LOS ANGELES AT L.A. LIVE 145 rule does not explicitly restrict activity protected by Sec- tion 7—“employees would reasonably construe the lan- guage [of the rule] to prohibit Section 7 activity.” Id. at 646, 647. As stated, the rule allows off-duty access where unspecified “circumstances . . . arise.” It does not define, describe, or limit in any way the “circumstances” under which access would or would not be granted. And the rule further requires employees to secure managerial approval, giving managers absolute discretion to grant or deny access for any reason, including to discriminate against or discourage Section 7 activity. The judge therefore found that the rule “invites reasonable employ- ees to believe that Section 7 activity is prohibited without prior management permission.” Indeed, because all ac- cess is prohibited without permission, it does more than merely invite that belief: it compels it. In turn, employ- ees would reasonably conclude that they were required to disclose to management the nature of the activity for which they sought access–a compelled disclosure that would certainly tend to chill the exercise of Section 7 rights.2 The Respondent argues that this rule is necessary for it to maintain order and limit liability risk, that the rule does not restrict Section 7 activities in nonwork exterior areas, that the General Counsel has not shown that the Respondent possesses union animus or has ever enforced the rule against any Section 7 activity, and that the Re- spondent has an open door policy by which employees could obtain clarification of any alleged ambiguity in the rule. These contentions are simply irrelevant in light of our findings that the rule is invalid under Tri-County and that it would reasonably lead employees to believe that their Section 7 activity in the interior areas of the hotel is prohibited without prior managerial approval. In such circumstances, employees have no obligation to seek further explanation of the rule from the Respondent through its open door policy. Likewise, and contrary to the Respondent’s argument, whether the rule treats all access seekers alike is equally irrelevant where the rule has the effect of requiring employees to request permis- 2 Contrary to our dissenting colleague, our holding here does not conflict with the holding in Lafayette Park Hotel, 326 NLRB 824 (1998). The rule there imposed a limited restriction on employee use of the “restaurant or cocktail lounge” specifically for “entertaining friends or guests” without managerial approval. That “narrow, extremely specific” prohibition “could not be more different than the present exception, in which the Respondent confers upon itself broad, standard- less discretion to suspend application of the rule,” Saint John’s Health Center, supra, slip op. at 2082 fn. 21, and would not “reasonably be read by employees to require them to secure permission from their employer as a precondition to engaging in protected concerted activity on their free time and in nonwork areas.” Lafayette Park Hotel, supra, 326 NLRB at 827. sion to engage in Section 7 activity. The Respondent also contends that it is a misinterpretation of Tri-County to read it to invalidate off-duty no-access rules that allow for exceptions. Our dissenting colleague argues like- wise. The Board has expressly rejected this contention before, and we do so here.3 See Saint John’s Health Center, supra, 357 NLRB 2078, 2082 fn. 22. 2. The revised access rule The revised rule prohibiting off-duty employee access is unchanged from the original version but for the substi- tution of “Property” for “hotel” and “Employees” for “Associates”: Returning to Work Premises Employees are not permitted in the interior areas of the Property more than fifteen minutes (15) 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 may obtain prior ap- proval from your manager. Failure to obtain prior ap- proval may be considered a violation of Company poli- cy and may result in disciplinary action. This policy does not apply to parking areas or other outside non- working areas (emphasis added). For the reasons set forth above, the revised rule is invalid under the third prong of the Tri-County standard. In addi- tion, the judge found the revised rule invalid for the same reason that the original rule is invalid: it permits access to the hotel for unspecified “circumstances” with managerial approval, and so it “would be understood by a reasonable employee as prohibiting activity protected under Section 7 of the Act without prior management approval” (emphasis supplied). The judge further noted that the term “Property” in the revised rule may be construed as more expansive than the term “hotel” in the original rule and could further con- fuse reasonable employees about the scope of the access restriction. For the reasons discussed above regarding the 3 Contrary to our dissenting colleague, our application of Tri-County would not prevent the Respondent from permitting access to the hotel’s interior by creating a narrow exception for special circumstances. See Saint John’s Health Center, supra, slip op. at 5 (describing employer’s exception to no-access rule, which “applie[d] to any and all events sponsored by the” employer, as “not a narrow one that might arguably be viewed as justified by ‘special circumstances’”). Similarly, the exception created by the Respondent here is not a narrow one that can be justified by “special circumstances” consistent with Republic Avia- tion Corp. v. NLRB, 324 U.S. 793 (1945), the seminal Supreme Court decision that informs the Tri-County rule, as the Saint John’s Health Center Board explained. Supra, slip op. at 4, 5. Rather, the Respond- ent’s rule suffers from the same defect as the rule in Saint John’s Health Center: it leaves the scope of the exception subject to the com- plete discretion of the employer. 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD original rule, we agree with the judge’s findings regarding the revised rule. Today’s decision enforces the Board’s longstanding Tri-County test governing no-access rules for off-duty employees. It does not, as the dissent claims, “disman- tle” the balance between employer and employee rights. Rather, hewing to the settled Tri-County principles, it merely prohibits an employer from interfering with em- ployees’ Section 7 rights by requiring employees who wish to engage in protected concerted activity from hav- ing to obtain permission to do so.4 B. Use Rules 1. The original use rule The original use rule states as follows: Use of Hotel Facilities The hotel and its facilities are designed for the enjoy- ment of our guests. If you wish to use the guest facili- ties during nonworking hours, you need to obtain prior approval from your manager. The judge found the term “guest facilities” “overly broad and undefined” and likely to confuse reasonable employees into believing that they needed to obtain prior management approval before engaging in protected activity, including in parking lots and other outside nonwork areas. Thus, he found the rule invalid under Lutheran-Heritage Village and Lafayette Park Hotel, supra. He further found there were outside nonwork areas that could be encompassed by the broad term “guest facilities,” so the rule also violated Tri- County because it did not limit access solely with respect to the interior of the premises and other work areas. Except- ing, the Respondent argues, and our dissenting colleague concurs, that the rule applies to off-duty employees who want to use the hotel’s facilities as guests, and guests have no Section 7 rights; that the use and access rules “go hand in hand” and the judge neglected to read them in conjunction with each other; and that, when read together, it would be 4 The dissent claims that no Sec. 7 right is at issue here because “there is no Section 7 right of off duty employees to access the interior of an employer’s facility.” That claim, however, misapprehends Board law and the principles that inform it. Under Tri-County, an employer may lawfully bar access to the interior of its facility—but only subject to certain conditions. When those conditions are not met, employees seeking to engage in protected, concerted activity are, indeed, entitled to access to the interior of the employer’s facility, pursuant to Sec. 7. Here, as in other areas, Board law balances the Sec. 7 rights of employ- ees and the rights and interests of employers. As the Board has recently explained, the principles established in Republic Aviation Corp., supra, and Eastex, Inc. v. NLRB, 427 U.S. 556 (1978), make central to Sec. 7 the ability of employees to communicate with their fellow employees in the workplace. Saint John’s Health Center, supra, 357 NLRB 2078, 2081. apparent that the access rule’s exclusion of parking lots and outside nonwork areas equally applies to the use rule. We are unpersuaded by these arguments. First, an em- ployee who uses the hotel’s “guest facilities” during off- duty hours does not somehow shed his or her employee status and Section 7 rights.5 For example, an employee who stays after work to discuss union matters with coworkers over supper in a hotel restaurant clearly would be engaged in activity protected under Section 7. Like the access rules, this rule requires management’s permis- sion for all activities without exception and therefore has a chilling effect on Section 7 activity for the reasons ex- plained above. Second, we do not think that reasonable employees would necessarily read the use and access rules in conjunction with each other. Although “access” and “use” may be related concepts, the fact remains that the Respondent saw fit to adopt separate rules, and em- ployees reasonably would conclude that they have sepa- rate and distinct purposes. Moreover, the Respondent clearly knows how to exclude parking lots and exterior nonwork areas from the scope of a rule, as it did so in its access rules; yet it chose not to incorporate that exclusion in its use rule. Thus, an employee would reasonably be- lieve that choice was deliberate, and that the term “guest facilities” does not exclude parking lots and exterior nonwork areas. Accordingly, we agree with the judge that the use rule is unlawful under both Tri-County and Lutheran Heritage Village. 2. The revised use rule The Respondent’s revised use rule is fundamentally different from the original rule. It goes beyond merely requiring prior approval to use the guest facilities during nonwork hours and now restricts employee access to numerous specific parts of the hotel without managerial approval: Use of Property Facilities The Property and its facilities are designed for the en- joyment of our guests and residence owners. You are not permitted on guest or resident floors, rooms, or ele- vators, in public restaurants, lounges, restrooms or any other guest or resident facility unless on a specified work assignment or with prior approval from your manager. Permission must be obtained from your manager before utilizing any Property outlet, visiting family or friends staying in the Property, or using any of the above mentioned facilities. Please ensure that 5 Jury’s Boston Hotel, 356 NLRB 927 (2011), cited by the Respond- ent, is not to the contrary. The portion of the hearing officer’s report upon which the Respondent relies, discussing a “use of guest facilities” rule, was not adopted by the Board. J.W. MARRIOTT LOS ANGELES AT L.A. LIVE 147 the manager of the area you intend to visit is aware of the approved arrangements. The judge found that the terms “Property,” “Property and its facilities,” and “Property outlet” were “generalized and am- biguous,” could reasonably be construed by employees as including the entire premises, and thus “could be construed by a reasonable employee as unlawfully restricting off-duty employee access” to outside nonwork areas. The judge also found the rule invalid “because reasonable employees would construe the rule as prohibiting activity that is pro- tected by the Act without prior managerial approval” both inside the hotel as well as outside in nonwork areas. In addition to contending that the revised use rule must be read in conjunction with the access rule, the Respond- ent argues that the revised rule specifically restricts ac- cess to guest facilities that are inside the property (guest or resident floors, rooms, lounges, etc.), and therefore employees would not reasonably believe they could not conduct Section 7 activity in parking areas and other exterior nonwork areas. It also argues that the rule is intended to limit employee use of facilities that are des- ignated for the “enjoyment” of the Respondent’s guests, and this obviously would not include parking areas. We agree with the judge’s findings. The terms “Prop- erty,” “Property and its facilities,” and “Property outlet” would reasonably be read by employees to include the entire property. These terms are even broader than the language used in the original use rule, which we have found invalid. We again reject the Respondent’s and the dissent’s arguments that the use and access rules would not reasonably be read separately by employees, but ra- ther that they would necessarily be read in conjunction. The ambiguity here must be construed against the Re- spondent, as the drafter of the rules. See Sodexo, supra, 358 NLRB No. 79, slip op. at 2. Accordingly, we agree with the judge that the revised use rule would reasonably be interpreted by employees to restrict off-duty employee access to exterior nonwork areas. We also agree that employees would construe the revised rule to prohibit Section 7 activity without prior managerial approval. We also find the revised use rule invalid because it does not specify that it applies only to off-duty employ- ees. Indeed, language in the revised rule prohibiting em- ployees from being in certain locations “unless on a specified work assignment” clearly contemplates other- wise. Accordingly, employees would reasonably inter- pret the rule to restrict their right to engage in Section 7 activity at times when they are properly on the Respond- ent’s property, such as during breaks. For the foregoing reasons, we find that the Respondent violated Section 8(a)(1) by maintaining all four chal- lenged rules, and we shall order appropriate remedies. ORDER The Respondent, Marriott International, Inc. d/b/a J.W. Marriott Los Angeles at L.A. Live, Los Angeles, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining the provision in its California Associ- ate handbook headed “Returning to Work Premises.” (b) Maintaining the provision in its California Associ- ate Handbook headed “Use of Hotel Facilities.” (c) Maintaining the provision in its L.A. Live employ- ee handbook headed “RETURNING TO WORK PREMISES.” (d) Maintaining the provision in its L.A. Live employ- ee handbook headed “USE OF PROPERTY FACILITIES.” (e) In any like or related manner interfering with, re- straining, 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 or revise the above-mentioned employee handbook provisions. (b) Either furnish all current employees with inserts for its California Associate handbook and L.A. Live em- ployee handbook that advise that the unlawful provisions have been rescinded or provide lawfully worded provi- sions, or publish and distribute revised employee hand- books that do not contain the unlawful provisions or sub- stitute lawfully worded provisions. (c) Within 14 days after service by the Region, post at its L.A. Live facility in Los Angeles, California, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal 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 Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the 6 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.” 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 2010. (d) Within 21 days after service by the Region, file with the Regional Director for Region 21 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. MEMBER HAYES, dissenting. Contrary to my colleagues, I find that Marriott’s off- duty access and facility use rules comply with Tri- County Medical Center, 222 NLRB 1089 (1976). The rules lawfully restrict off-duty employees from accessing the interior of the hotel or using the guest facilities. Be- cause the rules pass muster under Tri-County, the analy- sis ends there. But even assuming otherwise, the rules are also valid under Lutheran-Heritage Village-Livonia, 343 NLRB 646 (2004). They make no reference to Sec- tion 7 activity; they were not created in response to union activity or ever enforced against union activity; and rea- sonable employees would not understand them to prohib- it Section 7 activity. With its ruling today, the majority reaffirms its misreading of Tri-County to prohibit em- ployers from allowing commonsense exceptions to off- duty no-access rules.1 The majority also reads Marriott’s “use” rules in isolation from its “access” rules, contrary to Board and court precedent. Because the majority’s decision continues this Board’s dismantling of the care- ful balance between an employer’s right to control its property and an employee’s right to engage in Section 7 activity, I respectfully dissent. Access Rules The majority finds that the Respondent’s access rules violate the Act under the third prong of the Tri-County test because they permit access in certain circumstances with managerial approval. My colleagues continue to insist that Tri-County requires a uniform access prohibi- tion on all off-duty employees seeking access for any reason. As I have previously explained in my dissents in Saint John’s Health Center, supra, and Sodexo America LLC, supra, the third prong of the Tri-County test prohib- its discrimination against union activity and does not require a blanket prohibition on all off-duty access. Re- quiring employers to prohibit all access in order to pro- 1 See Saint John’s Health Center, 357 NLRB 2078 (2011); Sodexo America LLC, 358 NLRB No. 79 (2012). hibit any makes it virtually impossible for an employer to draft an enforceable rule restricting off-duty employee access. For example, what if an employee forgets her medication at the workplace and faces a medical emer- gency if she cannot retrieve it? The Act cannot reasona- bly be interpreted to force employers to choose between inhuman rigidity and giving off-duty employees free rein to the interior of their facilities. Here, because union activity is treated no differently from any other activity under the Respondent’s access rules, I would find these rules lawful. The majority also adopts the judge’s finding that the access rules’ requirement that off-duty employees obtain permission prior to entering the interior of the property tends to chill employees in exercising their Section 7 rights under Lutheran-Heritage Village. That finding rests on inapposite precedent. The judge relied on cases addressing rules requiring employees to seek permission prior to engaging in solicitation or distribution.2 Union- related solicitation during nonworktime, and distribution during nonworktime in nonwork areas, are protected by Section 7. Employer restrictions on such activities are presumptively unlawful. In contrast, the Board in Tri- County recognized an employer’s right to restrict off- duty employee access to the interior of its facility. The judge’s determination that the Respondent’s rules chilled employees’ Section 7 rights failed to identify any Section 7 right being chilled: unlike solicitation or distribution, there is no Section 7 right of off-duty employees to ac- cess the interior of an employer’s facility.3 And, again, the Respondent validly restricted that access under Tri- County. The majority claims that its decision here “hew[s] to settled Tri-County principles” by “merely prohibit[ing] an employer from interfering with employees’ Section 7 rights by requiring employees who wish to engage in protected concerted activity from having to obtain per- mission to do so.” I believe it does more than that. Based on the majority rationale here, in St. John’s Health Center, supra, and Sodexo, supra, the only no-access rule they would surely find valid under the third prong of Tri- County is one that would prohibit access uniformly. Thus, it is irrelevant that possible exceptions to the Re- spondent’s access rules are unspecified and subject to management’s permission. Even a rule that detailed spe- 2 The judge cited Brunswick Corp., 282 NLRB 794 (1987), and Tele- tech Holdings, Inc., 333 NLRB 402 (2001), which dealt with solicita- tion and distribution issues respectively. 3 The majority takes issue with this statement, but Tri-County itself proves it. If Sec. 7 created a right of access to employer property for off-duty employees, employers would not be permitted to prohibit that access to the degree permitted by that case. J.W. MARRIOTT LOS ANGELES AT L.A. LIVE 149 cific exceptions for off-duty access to the facility and permitted no employer discretion whatsoever would be unlawful. My colleagues do posit that exceptions might be valid under narrow “special circumstances,” but ab- sent concrete examples of an exception they would find legitimate, the concept remains illusory and of no practi- cal benefit to employers seeking guidance in this area. Moreover, the majority’s position is inconsistent with the Board’s decision in Lafayette Park Hotel, 326 NLRB 824 (1998), in which, as the judge noted here, “an em- ployer, in limited circumstances, is able to include excep- tions to an access restriction that encompasses off-duty employees.”4 If Tri-County is read to categorically pro- hibit any exceptions to off-duty access restrictions, then Lafayette Park cannot stand. Put differently, neither this case, St. John’s Health Center, nor Sodexo can be squared with Lafayette Park Hotel. The majority pur- ports to distinguish that case on the ground that the rule there would not be read to require employees to secure management permission. But the majority’s misreading and misapplication of Tri-County’s third prong renders that distinction immaterial. Use Rules The original and revised use rules require employees to obtain managerial permission prior to using the Re- spondent’s guest and resident owner facilities. The judge found, and my colleagues agree, that these rules are inva- lid because, unlike the access rules, they do not explicitly exclude from their prohibition exterior nonwork areas and parking lots. Accordingly, the majority reasons that employees could reasonably interpret the rules to prohib- it off-duty access to those exterior nonwork areas, which is presumptively impermissible. Thus, the majority finds, the use rules interfere with the employees’ Section 7 rights. The majority’s view is in direct opposition to the facts of this case. The rules do not mention Section 7 activity, were not promulgated in response to Section 7 activity, and have never been applied to restrict Section 7 activity. The use rules here address an employee’s using the facil- ity as a guest—a specific subset of off-duty access to the hotel. In spite of this, the majority analyzes the use rules independently from the access rules, which explicitly exclude parking lots and exterior nonwork areas from their prohibition. However, no employee would reason- ably think that the use rules are to be read and under- stood in isolation from the access rules. After all, an employee cannot use a facility without gaining access to 4 In Lafayette Park, the Board approved a rule that allowed off-duty employees, with manager’s approval, to use the restaurant or cocktail lounge “for entertaining friends or guests.” it. Moreover, as the Respondent points out, the use rules limit employees’ use of locations within the hotel that are “designed for the enjoyment of [Marriott’s] guests” (em- phasis added), and no one would think of a parking lot as a place to be enjoyed. Thus, it is clear that outside non- work areas such as parking lots are not covered by the use rules’ prohibitions. The majority’s conclusion to the contrary goes against Board and court precedent requir- ing employer rules to be read reasonably and in context. See Lutheran-Heritage Village, supra, 343 NLRB at 646 (“The Board must . . . give the rule a reasonable reading. It must refrain from reading particular phrases in isola- tion, and it must not presume improper interference with employee rights.”); Adtranz ABB Daimler-Benz v. NLRB, 253 F.3d 19, 20 (D.C. Cir. 2001) (reversing Board’s de- cision because “there is no consideration of the context of Adtranz’s rule, or its impact on employees”). In the revised use rule, the Respondent attempts to de- fine more specifically what constitutes a guest or resident owner area by referencing guest or resident floors, rooms, or elevators, and public restaurants, lounges, and restrooms. Although this makes parsing the rule for compliance with the Act slightly more complicated, the revision does not change the underlying purpose of the rule to restrict employee use of guest facilities as a guest. Even if a hotel restaurant might conceivably be used for a union-related employee meeting, as the majority says, no reasonable employee would read this rule as imposing a restriction on such activity, particularly considering the Respondent’s amicable relationship with the Union.5 Employees would understand the rule in accordance with its evident purpose: to ensure an enjoyable stay for Mar- riott’s paying guests, not to interfere with its employees’ union activities. And for reasons already stated, neither would they understand it to apply to parking lots or exte- rior nonwork areas. The majority further parses the language of the use rules to find them invalid for the additional reason that the rules could be read to restrict employee access to the interior of the facility when employees are on duty, thereby unlawfully restricting the employees’ right to engage in Section 7 activity while rightfully on the prop- erty, such as during breaks. This again ignores the rule’s purpose—to restrict employee use of the guest facilities as a guest, a restriction inapplicable to Section 7 activity at any time. 5 The Respondent hired the majority of its employees at the L.A. Live site early in 2010. At that time, it invited representatives from the Union on-site to speak with newly hired employees as part of their orientation. Subsequently, it voluntarily recognized the Union. 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dissemination Contrary to the judge’s decision, I would also find that both the access and use rules were clearly disseminated to employees as required under Tri-County’s second prong. Every employee received one or the other version of both rules; the original and revised access rules were virtually identical; and the revised use rule merely spelled out what was meant by “guest facilities” in the original use rule without changing the original rule’s purpose or scope. Thus, the Respondent’s distribution to all employees of handbooks containing the rules met the underlying purposes of the second prong of Tri-County. 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 vio- lated 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain the provision in our California Associate Handbook headed “Returning to Work Prem- ises.” WE WILL NOT maintain the provision in our California Associate handbook headed “Use of Hotel Facilities.” WE WILL NOT maintain the provision in our L.A. Live employee handbook headed “RETURNING TO WORK PREMISES.” WE WILL NOT maintain the provision in our L.A. Live employee handbook headed “USE OF PROPERTY FACILITIES.” 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 or revise the above-mentioned em- ployee handbook provisions. WE WILL either furnish you with inserts for your em- ployee handbooks that advise that the unlawful provi- sions have been rescinded or provide lawfully worded provisions, or publish and distribute revised employee handbooks that do not contain the unlawful provisions or substitute lawfully worded provisions. J.W. MARRIOTT LOS ANGELES AT L.A. LIVE Jean Libby, Esq., for the General Counsel. Kamran Mirrafati, Esq. (Seyfarth Shaw LLP), of Los Angeles, California, for the Respondent. Kirill Penteshin, Esq., Staff Attorney, of Los Angeles, Califor- nia, and Eric B. Meyers, Esq. (Davis, Cowell & Bowe LLP), of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. This case was tried in Los Angeles, California, on April 18, 2011. Unite Here! Local 11 (the Charging Party or the Union) filed the charge on October 28, 2010,1 against Marriott International, Inc. d/b/a J. W. Marriott Los Angeles at L.A. Live (the Re- spondent) and the General Counsel issued the complaint on January 27, 2011. Posthearing briefs by the General Counsel, the Charging Party, and the Respondent were timely submitted on June 13, 2011. The complaint as amended at the hearing alleges and the an- swer denies that the Respondent has maintained certain rules of employee conduct which interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relation’s Act (the Act) and, therefore, violate Section 8(a)(1) of the Act. FINDINGS OF FACT Upon the entire record including helpful briefs from each of the parties, I make the following findings of fact2 I. JURISDICTION At all material times, the Respondent, a State of Delaware corporation, with principal offices in Bethesda, Maryland, and a hotel facility located at 900 West Olympic Boulevard, Los Angeles, California (the Hotel), has been engaged in providing hotel and lodging services. During the 12-month period ending November 22, 2010, a representative period, the Respondent, in conducting its busi- ness operations derived gross revenues in excess of $500,000 from the operation of the Hotel and purchased and received at the Hotel goods valued in excess of $5000 directly from points outside the State of California. Based on these uncontested facts, I find the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The pleadings establish, there is no dispute, and I find the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 All dates are in 2010, unless otherwise indicated. 2 As a result of the pleadings and the stipulations of counsel at the trial, there were few disputes of fact regarding collateral matters. Where not otherwise noted, the findings are based on the pleadings, the stipula- tions of counsel, or unchallenged credible evidence. J.W. MARRIOTT LOS ANGELES AT L.A. LIVE 151 III. THE COLLECTIVE-BARGAINING RELATIONSHIP The following employees of the Respondent at the Hotel fa- cility (the unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time hotel service, housekeeping, food and beverage employees (including room cleaners, house persons, bell persons, telephone opera- tors, kitchen employees, servers, bussers, bartenders, cashiers, hosts, front desk employees, and concierges (at the J.W. Mar- riott only) employed by the Respondent at the Hotel, but ex- cluding the following employees: all secretarial, office cleri- cal, accounting, guest recognition and residential coordinators (at the Ritz-Carlton Hotel and Residences only), event man- agement coordinators, gift shop, lifeguard, pool-chemical cleaning, Spa (except that employees cleaning the spa facility will be in the unit), sales, maintenance and engineering em- ployees and all managers, supervisors, and guards as defined in the National Labor Relations Act. At all material times since April 10, 2010, the Respondent has recognized and, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. IV. THE ALLEGED UNFAIR LABOR PRACTICES The Employee Rules in Contest Over the course of 4 days in late January and early February 2010, the Respondent held four new employee orientation ses- sions for the roughly 500 employees that had been hired to staff the opening of the Respondent’s new L.A. Live property. Dur- ing these orientation sessions the Respondent promulgated and distributed an employee handbook entitled “California Associ- ate Handbook” (the California handbook) to each new hire. The Respondent had earlier promulgated the California handbook, which was last revised in June 2009, to all of its California employees. Commencing on or about late January 2010 with the issu- ance of the California handbook, the Respondent maintained the following “Return to Work Premises” rule at the Hotel: Associates are not permitted in the interior areas of the hotel more than fifteen minutes before or after their work shift. Oc- casionally, circumstances may arise when you are permitted to return to interior areas of the hotel after your work shift is over or your days off. On these occasions, you must obtain prior approval from your manager. Failure to obtain prior ap- proval 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 non-working areas. Commencing on or about late January 2010 with the issu- ance of the California handbook, the Respondent maintained the following “Use of Hotel Facilities” rule at the Hotel: The hotel and its facilities are designed for the enjoyment of our guests. If you wish to use the guest facilities during non- working hours, you need to obtain prior approval from your manager. These rules were both set forth in the California handbook initially distributed by the Respondent to employees in late January 2010 and were in effect thereafter as described in detail below. Following its becoming the unit employees’ representa- tive on April 10, 2010, the Union on May 19, 2010, submitted a request to the Respondent for its then-current California hand- book which the Respondent provided the Union on May 21, 2010. However, because of the unique situation in which the Ritz- Carlton Hotel and the Respondent’s Hotel shared the same building and needed a unified operating procedure, the Re- spondent drafted a new handbook specifically for the L.A. Live property (the L.A. Live handbook). The final draft of the L.A. Live handbook was not completed until early November 2010, after which the Respondent began distributing the L.A. Live handbook to newly hired employees during subsequent orienta- tion sessions in lieu of the California handbook. The Respond- ent admits that the only employees that received the L.A. Live handbook were those hired after the handbook’s finalization in November 2010 and any incumbent employees that proactively asked for a copy. That handbook contained the following modi- fications to the above-quoted rules: RETURNING TO WORK PREMISES: Employees are not permitted in the interior areas of the Prop- erty more than fifteen (15) minutes before and 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 Com- pany policy and may result in disciplinary action. This policy does not apply to parking areas or other outside non-working areas. With respect to the “Returning to Work Premises” rule, the L.A. Live handbook substituted “Employees” for the term “As- sociates” and “Property” for the term “hotel.” USE OF PROPERTY FACILITIES: The Property and its facilities are designed for the enjoyment of our guests and residence owners. You are not permitted on guest or resident floors, rooms, or elevators, in public restau- rants, lounges, restrooms or any other guest or resident facility unless on a specified work assignment or with prior approval from your manager. Permission must be obtained from your manager before utilizing any Property outlet, visiting family or friends staying in the Property, or using any of the above mentioned facilities. Please ensure that the manager of the ar- ea you intend to visit is aware of the approved arrangements. Thus in and after November 2010 the employees who had received the earlier employee handbook were aware of the ear- lier rules quoted above and the employees receiving the new employee handbook were aware of the subsequent rules. V. ANALYSIS AND CONCLUSIONS A. Threshold Issue: The 10(b) Timebar The Respondent in a motion to dismiss filed at the hearing and advanced in its posthearing brief argues that the alleged 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD violations referencing the rules in the original employee hand- book are timebarred under Section 10(b) because they were first promulgated more than 6 months before the charge was filed. However, an employer commits a continuing violation of the Act throughout the period that an unlawful rule is main- tained. See, e.g., Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Also with respect to an alleged timebar under Section 10(b), the maintenance of unlawful rules within 6 months of the filing of charges will render the action timely. Turtle Bay Re- sorts, 353 NLRB 1242 (2009). Accordingly, because there is no indication that the employees that received the original hand- book were notified at any time that those rules were superseded or discontinued, I find that the two original rules at issue locat- ed in the California handbook have been maintained throughout the relevant period leading up to filing of the unfair labor prac- tice charges on October 28, 2010. As such the Respondent’s timebar argument fails under the cases cited. B. The Handbook Rules as Interference with, Restraint, and Coercion of Employees’ Exercise of Section 7 Rights—Complaint Paragraph 9 1. Overview of the law Before examining each individual rule and the parties’ re- spective contentions, a brief examination of Board decisions dealing with the maintenance of employer work rules that re- strict off-duty employees’ access to the employer’s premises is useful. In general, the analytical framework for determining whether an employer’s maintenance of a work rule violates Section 8(a)(1) is 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 ex- ercise 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 rea- sonable reading. It must refrain from reading particular phrases in isolation, and it must not presume improper inter- ference with employee rights. Id. at 825, 827. Consistent with the foregoing, our inquiry into whether the maintenance of a challenged rule is unlawful begins with the issue of whether the rule explicitly restricts activities protected by Section 7. If it does, we will find the rule unlawful. If the rule does not explicitly restrict activity protected by Sec- tion 7, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the lan- guage to prohibit Section 7 activity; (2) the rule was promul- gated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.3 More specifically, the Board analyzes rules restricting off- duty employee access to an employer’s facility under a three- prong test first articulated in Tri-County Medical Center, 222 NLRB 1089 (1976). In that case, the Board stated: We conclude, in order to effectuate the policies of the Act, that such a rule is valid only if it (1) limits access solely with 3 343 NLRB at 646–647 (emphasis in original and footnote omitted). 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 pur- pose and not just to those employees engaging in union activi- ty. Finally, except where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid. [222 NLRB 1089 at 1089.] As noted, the General Counsel’s complaint attacks various portions of the Respondent’s handbook rules. The individual rules under challenge are best discussed separately. For clari- ty’s sake, each rule is quoted at the beginning of the analysis respecting it. 2. The original “Returning to Work Premises” rule—complaint subparagraph 9(a) The original Returning to Work Premises rule states: Associates are not permitted in the interior areas of the hotel more than fifteen minutes before or after their work shift. Oc- casionally, circumstances may arise when you are permitted to return to interior areas of the hotel after your work shift is over or your days off. On these occasions, you must obtain prior approval from your manager. Failure to obtain prior ap- proval 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 non-working areas. The General Counsel and the Union’s theory of a violation respecting the above-quoted rule is that, by allowing occasional access to the premises with a manager’s permission, the rule does not prohibit off-duty employee access for any purpose and thus contravenes the third requirement of the Tri-County Medi- cal Center test. In its posthearing brief at 10–14, the Respond- ent argues that, because the Board has previously validated no- access rules that included clauses granting manager permission to allow off-duty employees access to the premises in certain circumstances, the rule at issue should not be held unlawful. The Board in Lafayette Park Hotel, 326 NLRB 824, 827 (1998), found the following “Hotel rule 6” valid: Employees are not permitted to use the restaurant or cocktail lounge for entertaining friends or guests without the approval of the department manager. The General Counsel and Union in Lafayette Park Hotel ar- gued that the rule was unlawful “because it allows management to select which off-duty employees may use the premises, and can therefore be used to inhibit Section 7 activity.” Id. at 827. The Board nevertheless found the rule valid, responding to the General Counsel and union’s contention that the rule may cause employees to “reasonably believe that they must seek employer permission to engage in Section 7 activity in the restaurant or cocktail lounge, and that this belief would chill the employees in the exercise of their Section 7 rights,” by explaining at 827: [W]e do not believe that this rule reasonably would be read by employees to require them to secure permission from their employer as a precondition to engaging in protected concerted activity on an employee’s free time and in non-work areas. . . . J.W. MARRIOTT LOS ANGELES AT L.A. LIVE 153 Here, the rule does not mention or in any way implicate Sec- tion 7 activity. Rather, it merely requires permission for “en- tertaining friends or guests.” In our view, a reasonable em- ployee would not interpret this rule as requiring prior approval for Section 7 activity. There are legitimate business reasons for such a rule, and we believe that employees would recog- nize the rule for its legitimate purpose, and would not ascribe to it far-fetched meanings such as interference with Section 7 activity. We therefore find that the mere maintenance of this rule would not reasonably tend to chill employees in the exer- cise of their Section 7 rights. Accordingly, this allegation is dismissed. The General Counsel in the present matter cites two cases to support his claim that any exceptions to an off-duty employee access restriction rule will render it invalid under Tri-County Medical Center.4 The language in those cases does, in fact, indicate that the third requirement of the Tri-County Medical Center test necessitates the invalidation of any off-duty em- ployee access rule that provides for exceptions. However, I find that the more recent Board decision in Lafayette Park Hotel, supra, must also be read in analyzing the question. Lafayette Park Hotel’s “Hotel rule 6” as discussed above, is not distinguishable from an off-duty employee access re- striction rule that would normally be analyzed under Tri- County Medical Center because, as the rule reads and as both the Board reasoning and the General Counsel and Union’s quoted argument note, the rule encompasses employees who may want to use the restaurant or cocktail lounge for entertain- ing friends or guests while off-duty. While the Board does not explicitly state in Lafayette Park Hotel that the language of the third requirement of the test out- lined in Tri-County Medical Center was not meant to be read literally, the decision suggests, sub silentio, that an employer, in limited circumstances, is able to include exceptions to an access restriction rule that encompasses off-duty employees.5 The rule at issue, however, is not analogous to the “Hotel rule 6” validated in Lafayette Park Hotel. The “Hotel rule 6,” despite its exceptions, limited its reach to the entertainment of friends or guests, and it limited its application to the hotel res- taurant and cocktail lounge. The key issue that was addressed was not whether an access restriction rule excluded off-duty employees for any and all reasons. Rather the key issue was whether, if such a rule contains a clause granting manager or supervisor discretion to approve exceptions to access re- striction, it would cause a reasonable employee to interpret the rule as requiring prior approval for Section 7 activity and would thus chill employees’ exercise of that activity. 4 Baptist Memorial Hospital, 229 NLRB 45 (1977), enfd. 568 F.2d 1 (6th Cir. 1977); Intercommunity Hospital, 255 NLRB 468 (1981). 5 The Board in Lafayette Park Hotel reasons that because the access restriction rule “does not mention or in any way implicate Section 7 activity” and is drafted in a narrow manner and only restricts access for a limited purpose, it cannot be interpreted by a reasonable employee as requiring prior approval for Sec. 7 activity. Moreover, the access re- striction was deemed to be based on “legitimate business reasons,” and that “employees would recognize the rule for its legitimate purpose.” 326 NLRB at 827. Here, despite the fact that the instant rule does not mention or implicate Section 7 activity, the rule flatly requires manager approval for any off-duty access to the interior of the hotel. The Respondent’s rule and its manager approval clause is not lim- ited in scope, and any potentially legitimate business reasons for broadly barring off-duty employees from the interior of the hotel without manager approval would not be clear to employ- ees based on a facial reading of the rule.6 Therefore I find that, based on the rationale discussed above, the Respondent’s origi- nal “Returning to Work Premises” rule is invalid under both Lafayette Park Hotel and Lutheran Heritage Village-Livonia because the access restriction is not sufficiently limited and invites reasonable employees to believe that Section 7 activity is prohibited without prior managerial permission.7 The rule also fails under the second requirement of the Tri-County Med- ical Center test because the Respondent ceased distributing the original California handbook to newly hired employees in and after November 2010 and thus the rule has not been clearly disseminated to all employees. For all the above reasons, I find the rule invalid and that the General Counsel has sustained this element of the complaint. 3. The revised “Returning to Work Premises” rule 8 RETURNING TO WORK PREMISES: Employees are not permitted in the interior areas of the Prop- erty more than fifteen (15) minutes before and 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 Com- pany policy and may result in disciplinary action. This policy does not apply to parking areas or other outside non-working areas. The revised “Returning to Work Premises” rule was included in the Respondent’s L.A. Live handbook, which was distributed 6 Respondent’s inclusion of the clause limiting the “Returning to Work Premises” rule to the interior of the hotel and excluding “parking areas or other outside non-working areas” does not eliminate the possi- bility that a reasonable employee would construe the rule as requiring prior approval for Sec. 7 activity in nonwork areas in the interior of the hotel. 7 The present rule in contest is also similar to the rules invalidated in Brunswick Corp., 282 NLRB 794, 795 (1987), and TeleTech Holdings, Inc., 333 NLRB 402, 403 (2001), in that, even though union solicitation or other Sec. 7 activity is not directly implicated in this case, the broad manager approval clause theoretically covers such activity and there- fore requires off-duty employees to obtain the employer’s permission before engaging in union solicitation in nonwork areas during non- working time. See also the Board’s distinction between the valid rule in Lafayette Park Hotel and the invalid rule in Brunswick Corp., where the limited and specific nature of the valid rule’s manager approval clause foreclosed a reasonable employee’s interpretation of the rule as requiring prior approval for Sec. 7 activity. 326 NLRB 824, 827 (1998). There are no such limitations here. 8 The parties amended their pleadings at the hearing to include the more recent rules in the complaint and answer and specifically and skillfully litigated the validity of all four rules—older and newer—both at the hearing and on brief. 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to all new employees in and after November 2010, and only given to existing employees that proactively asked for a copy of the new handbook. The material changes to the rule in the L.A. Live handbook substituted “Employees” for the term “Associ- ates” and “Property” for the term “hotel.” “Property” may be construed as a more expansive term than “hotel”, which I find could further confuse reasonable employees about the scope of the access restriction rule. As such, because the revised “Re- turning to Work Premises” rule found in the L.A. Live hand- book would be understood by a reasonable employee as prohib- iting activity protected under Section 7 of the Act without prior managerial approval, I find that, based on the same rationale outlined in the above analysis for the original “Returning to Work Premises” rule, the instant rule is invalid under both Lafayette Park Hotel and Lutheran-Heritage Village-Livonia. The rule also fails under the second requirement of the Tri- County Medical Center test because the Respondent failed to distribute the L.A. Live handbook to all of the employees that had been hired prior to November 2010, who had not asked for a copy of the new handbook, and thus the rule has not been clearly disseminated to all employees. For all the above reasons, I find the rule invalid and that the General Counsel has sustained this element of the complaint. 4. The “Use of Hotel Facilities” rule—complaint subparagraph 9(b) The use of Hotel facilities rule states: The hotel and its facilities are designed for the enjoyment of our guests. If you wish to use the guest facilities during non- working hours, you need to obtain prior approval from your manager. The General Counsel and the Charging Party both argue that the “Use of Hotel Facilities” rule found in the California hand- book violates Tri-County Medical Center because it may be reasonably read to include exterior facilities of the hotel to which off-duty employees have a Section 7 right of access. The Respondent counters with various novel arguments, but fails to address the fact that the term “guest facilities” is overly broad and undefined and could confuse reasonable employees into believing that they need to obtain prior managerial approval before engaging in activity protected under the Act, including lawfully entering parking lots, gates, or other outside nonwork areas. As such, this rule is invalid under both Lafayette Park Hotel and Lutheran-Heritage Village-Livonia because it invites reasonable employees to believe that Section 7 activity is pro- hibited without prior managerial approval. Further, the undisputed record evidence shows that there are outside nonwork areas, such as the outside patio connected to the mixing-room bar area, which could be encompassed by the broad term “guest facilities.” Accordingly, I find that this rule violates Tri-County Medical Center because it does not limit access solely with respect to the interior of the premises and other working areas. Further, I find the rule has not been clearly disseminated to all employees because the Respondent ceased distributing the California handbook to newly hired employees sometime in November 2010. For all the above reasons, I find the rule invalid and that the General Counsel has sustained this element of the complaint. 5. The updated “Use of Property Facilities” rule USE OF PROPERTY FACILITIES: The Property and its facilities are designed for the enjoyment of our guests and residence owners. You are not permitted on guest or resident floors, rooms, or elevators, in public restau- rants, lounges, restrooms or any other guest or resident facility unless on a specified work assignment or with prior approval from your manager. Permission must be obtained from your manager before utilizing any Property outlet, visiting family or friends staying in the Property, or using any of the above mentioned facilities. Please ensure that the manager of the ar- ea you intend to visit is aware of the approved arrangements. The Respondent argues that, because the updated “Use of Property Facilities” rule specifically restricts access to guest facilities that are inside the property, the rule would not be construed by a reasonable employee as prohibiting Section 7 activity. General Counsel notes, however, that the rule itself is ambiguous and unclear and thus should be interpreted as un- lawfully restricting employee access to outside facilities. Where ambiguities appear in employee work rules promulgated by an employer, the ambiguity must be resolved against the promul- gator of the rule rather than the employees, who are required to obey it. Norris/O’Bannon, 307 NLRB 1236, 1245 (1992). The Respondent responds with the Board’s holding that: [i]n 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.9 Based on this, the Respondent argues on brief at 15 that em- ployer rules must not be “nitpicked” in order to find a violation. Without nitpicking, I conclude, when given a reasonable reading, the rule’s generalized and ambiguous terms and phrases referring to the Property (“Property,” “Property and its facilities,” “Property outlet”) may nevertheless be reasonably construed from an employee’s perspective, as encompassing the entire premises and could be construed by a reasonable employee as unlawfully restricting off-duty employee access to outside nonwork areas. Also, the phrase listing the various are- as that are explicitly included in the restriction may not be read in isolation, but must be read in context as simply giving spe- cific examples of areas that are restricted within the broader umbrella of the “Property,” the “Property and its facilities,” or “any Property outlet.” Again, as noted supra, the Board teaches that the ambiguities in rules of this type must be resolved against the Respondent, who promulgated the rule, and not against the employees, who are required to obey them. Under such an analysis the instant rule broadly restricts access to the Property and thus is invalid under Lafayette Park Hotel and Lutheran-Heritage Village-Livonia because reasonable em- ployees would construe the rule as prohibiting activity that is 9 Lutheran-Heritage Village-Livonia, 343 NLRB 646, 646 (2004). J.W. MARRIOTT LOS ANGELES AT L.A. LIVE 155 protected by Section 7 of the Act without prior managerial approval. The rule also fails under Tri-County Medical Center because the Respondent failed to distribute the L.A. Live hand- book to all employees hired prior to November 2010, and thus the rule hasn’t been clearly disseminated to all employees. For all the above reasons, I find the rule invalid and that the General Counsel has sustained this element of the complaint. 6. Summary and conclusions As set forth above, I have found that the General Counsel has sustained his burden of proving each of the four rules is invalid, because they chill employee exercise of Section 7 rights, therefore constituting a violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW Given all the above, including the above findings of fact, and based on the record as a whole, including the posthearing briefs of the parties, I make the following conclusions of law: 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(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. The Respondent by distributing to its employees and con- tinually maintaining the following rules at its L.A. Live facility in Los Angeles, California, as set forth on page 6 of its Califor- nia handbook, has been interfering with, restraining, and coerc- ing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act in violation of Section 8(a)(1) of the Act: (a) Returning to Work Premises Associates are not permitted in the interior areas of the hotel more than fifteen minutes before or after their work shift. Oc- casionally, circumstances may arise when you are permitted to return to interior areas of the hotel after your work shift is over or your days off. On these occasions, you must obtain prior approval from your manager. Failure to obtain prior ap- proval 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 non-working areas. (b) Use of Hotel Facilities The hotel and its facilities are designed for the enjoyment of our guests. If you wish to use the guest facilities during non- working hours, you need to obtain prior approval from your manager. 4. The Respondent by distributing to its employees and con- tinually maintaining the following rules at its L.A. Live facility in Los Angeles, California, as set forth on pages 43 and 44 of its L.A. Live handbook has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act: (a) RETURNING TO WORK PREMISES: Employees are not permitted in the interior areas of the Prop- erty more than fifteen (15) minutes before and 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 Com- pany policy and may result in disciplinary action. This policy does not apply to parking areas or other outside non-working areas. (b) USE OF PROPERTY FACILITIES: The Property and its facilities are designed for the enjoyment of our guests and residence owners. You are not permitted on guest or resident floors, rooms, or elevators, in public restau- rants, lounges, restrooms or any other guest or resident facility unless on a specified work assignment or with prior approval from your manager. Permission must be obtained from your manager before utilizing any Property outlet, visiting family or friends staying in the Property, or using any of the above mentioned facilities. Please ensure that the manager of the ar- ea you intend to visit is aware of the approved arrangements. 5. The unfair labor practices found above have an effect on commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent violated the Act as set forth above, I shall recommend that it be ordered to cease and desist from engaging in the conduct found unlawful, and from engaging in any like or related conduct. I shall also recommend that the Respondent rescind the rules quoted above, remove them from the appropriate handbooks, and advise the employ- ees in writing that the rules have been withdrawn and are no longer being maintained. Lafayette Park Hotel, 326 NLRB 824, 834 (1998). The Respondent shall post the attached remedial Board no- tice, in English and Spanish languages, and, in addition to phys- ical posting of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customar- ily communicates with its employees by such means. J. Picini Flooring, 356 NLRB 11 (2010). The posting of the paper notic- es by the Respondent shall occur at all places where notices to employees are customarily posted at the facility. [Recommended Order omitted from publication.]