NLRA Limits on Anti-Fraternization Policies Renew Concerns for Employers

February 9, 2007

Many employers include anti-fraternization policies in employee handbooks or policy manuals to prevent personal relationships among employees that have turned corrosive from damaging the work environment and to avoid conflicts of interests with customers and business partners outside the workplace. The National Labor Relations Act, however, imposes significant restrictions on such policies in unionized and non-union companies alike. Where policies are found to interfere with employees' protected rights to engage in union and other concerted activity, including the right to discuss terms and conditions of employment for the employees' mutual benefit, they may be deemed unlawful. A recent federal appeals court decision in Washington, D.C., illustrates the armchair quarterbacking that awaits an employer whose policy is challenged before the National Labor Relations Board. Guardsmark, LLC v. National Labor Relations Board, 2007 U.S. App. LEXIS 2263 (D.C. Cir. Feb. 2, 2007).

Guardsmark, LLC, a nationwide company providing security guard services, maintained an anti- fraternization rule in its employee handbook prohibiting employees from "fraterniz[ing] on duty or off duty, dat[ing] or becom[ing] overly friendly with the client's employees or with co-employees." The National Labor Relations Board's General Counsel complained, upon the filing of a charge, that the policy violated the NLRA, because it tended "to interfere with, restrain, or coerce employees" in the exercise of their statutory rights.

An NLRB Administrative Law Judge disagreed. He found the policy to be lawful, because employees would understand that the fraternization rule was "designed to provide safeguards so that security will not be compromised by interpersonal relationships," and not to prohibit protected conduct. The NLRB adopted the ALJ's finding, stating that the fraternization rule prohibits only personal entanglements and that employees would reasonably understand it not apply to activity vouchsafed by the NLRA, such as discussions among employees of their terms and conditions of employment. The NLRB found that the word "fraternize" in the policy, when viewed in connection with the neighboring expressions "date" and "become overly friendly," referred only to romantic or personal relationships, and thus could not be read reasonably to allude to protected activity. The Board dismissed the complaint.

A disappointed union sought judicial review. It found a more receptive audience in the Court of Appeals. Reversing the NLRB's decision, the D.C. Circuit focused its analysis on the meaning of the word "fraternize" and determined that the foundation of the NLRB's analysis was incorrect. The court explained that if "fraternize" as used in the rule was not given independent meaning, it would only be superfluous of the prohibitions on "dating" or becoming "overly friendly". It would not presume the term was intended to be meaningless. The Court then conducted a detailed examination of various dictionary definitions of the word "fraternize." It found that a majority of dictionaries usually listed "fraternal associations" as the primary definition, and "personal relationships" as a secondary definition. This confirmed, in its view, the propriety of viewing the prohibition expansively. The Court held, therefore, that the NLRB's ruling would have a chilling effect on employees' rights because they would reasonably interpret the rule to prevent them from talking about terms and conditions of employment within their union – a fraternal association as found in the definitions.

The Court also scored the NLRB's reliance on Guardsmark's alleged business justification for the rule, that it was intended to "provide safeguards so that security will not be compromised by interpersonal relationships between guards." The Court stated that Guardsmark's goal still could have been achieved either by removing the word "fraternize" altogether and defining personal or romantic relationships, or by adding an exception for protected activity.

This decision is instructive of the care with which employers must craft all personnel polices and practices, particularly those which may implicate important statutory rights, and of the uncertain legal reception that sometimes awaits even a seemingly unexceptional and justifiable rule.

BACK TO EPL NEWS