Washington Post Columnist Criticizes the NLRB’s decision in Guardsmark

On August 10, The Washington Post printed a column by Harold Meyerson criticizing the Board’s recent decision in Guardsmark, LLC, 344 NLRB No. 97 (2005). Harold Meyerson, Big Brother On and Off the Job, Wash. Post, August 10, 2005, at A17

I think that Guardsmark is a weak decision for the reasons set forth below. Nevertheless, I think that Meyerson’s criticism of the decision is somewhat off base and reflects a misunderstanding of the National Labor Relations Act and the Board’s authority.

In Guardsmark, the Board held that an employer did not violate Section 8(a)(1) by maintaining the following rule in its employee handbook: “[Employees] must NOT . . . fraternize on or off duty, date[,] or become overly friendly with the client’s employees or with co-employees.” The majority (Battista and Schaumber) thought that no reasonable employee could interpret this rule as restricting union activity or any other concerted activity for mutual aid or protection. The majority emphasized that the prohibition on fraternizing appeared alongside prohibitions on dating or becoming overly friendly with coworkers in finding that employees could not reasonably interpret the rule as anything other than a prohibition on personal entanglements with coworkers. In other words, the majority found that it would be unreasonable for employees to read the prohibition on fraternization as precluding them from meeting together to discuss terms and conditions of employment.

Member Liebman dissented. She argued that employees could reasonably interpret the employer’s ban on employee fraternization as prohibiting employees from meeting to discuss terms and conditions of employment. Because the rule already banned dating and becoming overly friendly, Liebman argued that employees could reasonably assume that the ban on fraternization must apply to other activities. She pointed out that the verb “fraternize” means to associate with others in a brotherly manner, which she thought would cover meetings to discuss work-related problems, activity protected by the Act. Consequently, she voted to find a violation.

I think that Guardsmark is a poor decision for the reasons set forth in Member Liebman’s dissent. An employer’s rule violates Section 8(a)(1) if employees can reasonably interpret it as prohibiting concerted activity for mutual aid or protection, even if a noncoercive reasonable interpretation of the rule also exists. Double D Construction Group, Inc., 339 NLRB 303, 303-04 (2003), cited with approval in Joseph Chevrolet, Inc., 343 NLRB No. 2, slip op. at 3 (2004). The majority’s interpretation of the rule as an anti-socializing rule certainly is one reasonable interpretation of the rule. However, Member Liebman identified another reasonable interpretation, one that restricts Section 7 activity. Under Double D Construction, the employer’s rule violated the Act.

Despite my disagreement with the Guardsmark majority, I think that Meyerson’s criticism is misguided. Meyerson contends that Guardsmark is a “remarkable ruling that expands the rights of employers to muck around in their workers’ lives when they’re off the job.” With that statement, Meyerson implies that the Board bestowed on employers some new privilege to regulate the off-duty affairs of their employees and that the Board had previously interpreted the NLRA to limit an employer’s regulation of employees’ off-duty activities. He suggests that Guardsmark is a “precedent that can be applied to a far wider range of workers in a far wider range of situations.” For example, he suggests that the Board’s ruling could be responsible for legalizing employers’ rules prohibiting workers from playing poker at each others’ homes or meeting for a weekend picnic. He even states that the Board would encourage such rules: “[t]he National Labor Relations Board (NLRB) doesn't want the employees chatting it up off the job.”

The truth is that Guardsmark does not establish some new employer right to regulate the off-duty affairs of their workers; that “right” is a longstanding function of the limited nature of our federal labor laws. The NLRA is a limited statute in some respects. It grants employees the right to engage in concerted activities for mutual aid or protection. It prohibits employers from coercing, interfering with, or restraining employees in the exercise of that right. The NLRA is not a catch-all labor statute that makes unlawful all idiotic, counterproductive rules that employers might implement and enforce. Specifically, the NLRA does not prohibit employers from adopting and enforcing ridiculous rules prohibiting employees from socializing with each other off-duty, provided that the ridiculous rule cannot reasonably be interpreted as preventing employees from engaging in concerted activity for mutual aid or protection.

As stated above, I think the Board failed to properly apply that proviso. Assuming, however, that the Board correctly found that it was unreasonable for employees to read the rule as restricting protected activity, the employer acted lawfully even though its rule prohibited all sorts of off-duty activities with each other. Thus, the Guardsmark decision does not represent some seismic shift in labor law, as Meyerson’s column suggests. Instead, it is a run-of-the-mill weak decision.

In writing this blog entry, I wondered whether the Board could expand current law and declare unlawful the kinds of rules cited by Meyerson that prohibit poker parties and picnics, even when it is unreasonable for employees to interpret those rules as restricting protected activity. One could argue that off-duty socialization is a necessary precursor to concerted activity for mutual aid or protection. Accepting this premise, anti-socializing rules indirectly interfere with protected activity by preventing employees from coming together in the first instance to create an atmosphere in which they would feel comfortable discussing terms and conditions of employment. A Board adopting this interpretation might allow an employer to justify its ban on off-duty socializing by pointing to some legitimate business reason for the ban. Whatever the merits of this interpretation, it surely is not current law.