NLRB Green Lights Ban on Off-Duty Fraternizing Among Co-Workers

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Published 07-27-2005

 

NLRB Green Lights Ban on Off-Duty Fraternizing Among Co-Workers

 

Workers Rights Watch Eye on the NLRBIt is a regular pastime for

co-workers to chat during a coffee break, at a union hall, or over a

beer about workplace issues, good grilling recipes, and celebrity

gossip. Yet a recent ruling by the National Labor Relations Board

(NLRB) allows employers to ban off-duty fraternizing among co-workers,

severely weakening the rights of free association and speech, and

violating basic standards of privacy for America's workers.

 

So how did the NLRB decide to weaken fundamental workplace

protections? Security firm Guardsmark instituted a rule directing

employees not to " fraternize on duty or off duty, date, or become

overly friendly with the client's employees or with co-employees. " In

September 2003, the Service Employees International Union filed unfair

labor practice charges with the NLRB against Guardsmark, claiming that

the company's work rules inhibited its employees' Section 7 rights.

 

Section 7 of the National Labor Relations Act grants workers the right

to " self-organization, to form, join, or assist labor

organizations…and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection... "

While the law allows employers to ban association among co-workers

during work hours, Guardsmark's rule was broader in that it applied to

the off-duty association of co-workers.

 

On June 7, 2005, the Board ruled 2 to 1 that Guardsmark's

fraternization rule was lawful.1 The Board majority argued that

workers would likely interpret the fraternization rule as merely a ban

on dating, and not a prohibition of the association among co-workers

protected by Section 7. But the dissenting member of the Board

pointed out that since the rule already mentions dating, workers would

understand fraternization to mean something else. She noted, " the

primary meaning of the term 'fraternize…[is] to associate in a

brotherly manner'…and that kind of association is the essence of

workplace solidarity. "

 

Growing Workforce, Shrinking Protection

 

Number of U.S. workers for every employee of the NLRB:

In 1980: 30,1762

In 2003: 69,4073

 

While there are reasons for employers to ban dating among co-workers

(namely to prevent sexual harassment), prohibiting off-duty

fraternization is something quite different. Such a ban inevitably

chills collective action of any sort—be it on a purely social basis or

related to employees discussing whether to form a union or not.

 

Since employers are not obligated to inform employees of their

legally-protected right to associate with their co-workers, how can we

expect any employee to assume that a rule banning fraternization

doesn't interfere with these rights? And why would someone risk

violating a no-fraternization rule, given that most employees work 'at

will'—meaning they can be fired for no reason?

 

America's workers need more opportunities to come together to discuss

vexing workplace issues, or just to make personal connections with

those we spend most of our waking hours with. But the NLRB gives

employers the green light to invade our privacy and chip away at our

most basic rights in the workplace.

 

Additional Resources

 

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of Workers' Rights Watch: Eye on the NLRB is published.

 

2. Read past editions of Workers' Rights Watch: Eye on the NLRB.

3. If you know of a case that we should highlight in a future edition

of Workers' Rights Watch: Eye on the NLRB, please let us know. Send

these stories, along with your contact information, case details and

related information to nlrbstories.

 

Endnotes

 

1. Guardsmark, LLC, 344 NLRB No. 97 (2005).

2. Human Rights Watch, " Unfair Advantage: Workers' Freedom of

Association in the United States Under International Human Rights

Standards " (2000).

3. Bureau of Labor Statistics, " Employees on non-farm payrolls by

major industry sector,