The District of Columbia Court of Appeals recently overruled the National Labor Relations Board (the Board), and determined that an employer maintained an unlawful fraternization policy that violated the National Labor Relations Act (the Act). See Guardsmark LLC v. NLRB (Feb. 2, 2007). The policy, which was maintained in the employer’s handbook, provided that employees were not to “fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.”
The Act, which applies to both unionized and union-free employers, protects employees’ right to support unions and engage in concerted activities related to their terms and conditions of employment. The Board explained that because “fraternize” was placed next to the terms “date” and “overly friendly,” the employees would reasonably conclude that the rule only prohibited romantic relationships. Additionally, the Board held that the policy was lawful because it could not reasonably be interpreted to prohibit employees from engaging in protected activities under the Act.
The Court disagreed, and held that the policy was unlawful. In its analysis, the Court discounted the Board’s rationale that the term “fraternize,” when placed in context with “date” and “overly friendly,” made it clear that the rule only prohibited romantic relationships. The Court determined that since “date” and “overly friendly” apply to romantic relationships, employees could reasonably conclude that “fraternize” must apply to something else. The Court noted a number of dictionaries define “fraternize” as to interact as brothers or on fraternal terms. It also pointed out that unions are fraternal organizations. For these reasons, the Court held that the employer’s fraternization policy violated the Act because it could reasonably be interpreted to prohibit employees from engaging in fraternal discussions of their terms and conditions of employment. Although not critical to its holding, the Court also indicated that a policy would likely be found unlawful if it could be interpreted as a blanket prohibition against employees talking to customers about terms and conditions of employment.
Employers’ Bottom Line:
Parties have a right to appeal all Board decisions to the D.C. Circuit, so any employer with a policy prohibiting “fraternizing” should consider modifying it to make clear that the policy only applies to romantic involvement. It is also critically important to periodically review employee handbooks to ensure all policies are lawful. When a union files a successful charge alleging that an employer – whether unionized or union-free – violated the Act, it often results in the union obtaining significant leverage. A prime source for potential violations is handbooks, and that is often the first place unions will look when trying to manufacture charges against an employer caught in the crosshairs. The fact that a policy has not been unlawfully enforced is no defense. Simply maintaining a policy that could reasonably be construed to violate employees’ rights under the Act is unlawful. As unions increasingly attempt to accomplish their objectives by filing charges, employers should act proactively to reduce the possibility that they could be found to have violated the Act.
For additional information regarding unions and handbooks, please contact the author of this Alert, Don Lee, an attorney in Ford & Harrison’s Atlanta’s office, firstname.lastname@example.org
, 404-888-3861, or the Ford & Harrison attorney with whom you regularly work.