Appeals court overturns NLRB ruling
IN A VICTORY for workers — and happy hour lovers everywhere — the D.C. Circuit Court of Appeals ruled February 2 that the National Labor Relations Board (NLRB) erred when it supported a policy by Guardsmark LLC that would have banned off-duty “fraternizing” by co-workers.
The case first drew national attention in the summer of 2005, when Guardsmark won an NLRB decision for a new policy that stated: “While on duty you must NOT . . . fraternize on duty or off-duty, date, or become overly friendly with the client’s employees or with co-employees.”
Critics of the NLRB decision were astounded and wondered if common social activities like happy hour and coffee breaks would become a thing of the past if the ruling stood and set a precedent.
Service Employees International Union (SEIU) Local 24/7, which represents Guardsmark security employees in San Francisco, appealed the decision, charging that the policy unlawfully restricts employees from exercising their rights under Section 7 of the National Labor Relations Act.
Section 7 allows workers “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...”
Guardsmark had argued that the policy was not intended to restrict employees from engaging in protected union activities but rather to prevent personal entanglements on the job. The company said that its employees would understand the intent. However, the Court disagreed, supporting the union’s contention that the policy’s use of the term “fraternize” could reasonably be construed as referring to fraternal organizations such as unions, and thus barring employees from discussing terms and conditions of employment on or off the job. Because the company’s policy infringed on the employees’ right to discuss terms and conditions of employment as guaranteed by Section 7 of the National Labor Relations Act, the Court ruled that the company’s policy was unlawfully overbroad.
The NLRB’s support of Guardsmark in this case has sparked widespread condemnation from many unions, educators, journalists, lawyers, and workers. When the story first broke, the Washington Postran a story with the headline, “Big Brother On and Off the Job.” The story stated: “On June 7  the three Republican appointees on the five-member board that regulates employer-employee relations in the United States handed down a remarkable ruling that expands the rights of employers to muck around in their workers’ lives when they’re off the job.”
Around the same time an activist group called American Rights at Work ran the headline, “Big Brother nixes happy hour.” Following the recent appeals court decision overturning the NLRB ruling, Americans at Work stated: “While we should all meet up after work to celebrate this decision, it’s a sad day when a higher court has to save workers’ rights from destruction from the agency created to protect them.”