Guardsmark, LLC v. National Labor Relations Board
475 F.3d 369, 2007 U.S. App. LEXIS 2263, 374 U.S. App. D.C. 360 (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An employer's work rule violates the National Labor Relations Act (NLRA) if it explicitly restricts employees' Section 7 protected activities or is worded so ambiguously that employees would reasonably construe it to prohibit such activities, even if the rule has never been enforced.
Facts:
- Guardsmark, LLC, a nationwide security services company, distributed a handbook to all its uniformed employees.
- The handbook contained a 'chain-of-command' rule which stated, 'Do not register complaints with any representative of the client.'
- The handbook also included a 'solicitation' rule that prohibited solicitation and distribution of literature 'at all times while on duty or in uniform.'
- A 'fraternization' rule in the handbook prohibited employees from 'fraterniz[ing] on duty or off duty' with other employees.
- Guardsmark provided a clarifying 'safe harbor' for the solicitation rule to some employees in its San Francisco office, allowing solicitation in uniform if insignia were covered, but did not communicate this to all employees.
- The stated purpose of the fraternization rule was to prevent personal entanglements that could compromise security.
Procedural Posture:
- The Service Employees International Union Local 24/7 filed unfair labor practice charges against Guardsmark with the National Labor Relations Board (NLRB).
- The NLRB's General Counsel issued a complaint alleging three of Guardsmark's handbook rules violated the NLRA.
- An Administrative Law Judge (ALJ) held a hearing and found the chain-of-command rule unlawful but upheld the solicitation and fraternization rules.
- The NLRB reviewed the ALJ's decision, affirming the chain-of-command rule violation, reversing on the solicitation rule (finding it unlawful), and affirming that the fraternization rule was lawful.
- Guardsmark petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the adverse findings on the chain-of-command and solicitation rules.
- The Union petitioned the same court for review of the Board's decision upholding the fraternization rule.
- The NLRB filed a cross-petition for enforcement of its order.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Do employer work rules that prohibit employees from registering complaints with clients, engaging in solicitation while off-duty but in uniform, or fraternizing with co-workers on or off duty violate Section 8(a)(1) of the NLRA by reasonably tending to chill the exercise of employees' Section 7 rights?
Opinions:
Majority - Tatel, Circuit Judge
Yes, all three rules violate the NLRA. Employer work rules that explicitly prohibit or would reasonably be construed by employees to prohibit protected concerted activities under Section 7 are unlawful unfair labor practices. The court affirmed the National Labor Relations Board's (NLRB) findings that the chain-of-command and solicitation rules were unlawful, and reversed the Board's finding that the fraternization rule was lawful. Reasoning on the Chain-of-Command Rule: The court upheld the Board's finding that the rule explicitly violated the NLRA. The sentence 'Do not register complaints with any representative of the client' is an absolute prohibition that is not limited by the 'While on duty' language at the beginning of the paragraph. This directly infringes on employees' protected right to seek support from customers concerning their terms of employment. Because the rule explicitly restricts Section 7 activity, its mere maintenance is an unfair labor practice, regardless of enforcement. Reasoning on the Solicitation Rule: The court upheld the Board's finding that the rule was unlawful. The language prohibiting solicitation 'at all times while on duty or in uniform' functions disjunctively, unlawfully banning protected off-duty solicitation simply because an employee is in uniform. The company's uncommunicated 'safe harbor' clarification to some employees was insufficient to cure the rule's overbreadth. Reasoning on the Fraternization Rule: The court reversed the Board and found the rule unlawful. A reasonable employee would likely interpret the broad prohibition on 'fraternizing' to include protected activities like discussing terms of employment or union organizing, especially since the rule also specifically prohibits 'dating' and 'becoming overly friendly.' If 'fraternize' only meant personal entanglements, the term would be redundant. The primary dictionary definition of 'fraternize' involves associating as brothers, which directly implicates the associational rights protected by Section 7. The rule was not narrowly tailored to the employer's stated business justification.
Analysis:
This decision reinforces the NLRB's 'mere maintenance' doctrine, holding that an overbroad work rule is unlawful simply by its existence because of its potential to chill protected employee activity, regardless of actual enforcement. It serves as a significant caution to employers that ambiguous terms in employee handbooks, such as 'fraternize,' will be interpreted from the perspective of a reasonable employee. The ruling underscores the principle that even if an employer has a legitimate business justification for a rule, it must be narrowly tailored to achieve its purpose without infringing on NLRA rights, placing a heavy burden on employers to draft their policies with precision.
