Do Workers Still Have the Right to Socialize?
Submitted on Sun, 10/09/2005 - 5:51pm
By Alexis Buss - Industrial Worker, September 2005.
In a stunning turn-around from recent decisions limiting workers' rights, the Bush-appointed U.S. National Labor Relations Board issued a June 7 ruling which requires that every trip to the bar, ballpark or café among coworkers should include discussion of wages, hours and working conditions. Otherwise, workers may not have legal protections for hanging out with one another.
Ok, not quite. The case, which originates in a charge filed by SEIU Local 24/7 against Guardsmark, a San Francisco-based security company, was filed to deal with three Guardsmark work rules relating to workers' abilities to talk to one another, and enlist the support of the public, including the firm's clients:
1) A "chain of command" rule, which says that on-duty workers may only take problems up a chain of command in a very proscribed way, and that workers may not register complaints with the company's clients;
2) A "no-solicitation" rule prohibiting solicitation and the handing out of literature while on duty or in uniform;
3) An "anti-fraternization" rule, which states, "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."
The NLRB ruled that the chain of command and no-solicitation rules were illegal under the National Labor Relations Act. The chain of command rule was deemed illegal as written because of a 1980 case, Allied Aviation Service Co. of NJ, which ruled that workers are free to enlist clients or customers regarding workplace problems. Part of the reason why this rule was struck down was the question of whether or not the worker is on duty. The board went out of their way to suggest that if Guardsmark changes their rule to clarify that off-duty solicitation was not forbidden, the rule would be ok.
The no solicitation rule was deemed illegal as written because it included the prohibition against soliciting while in uniform, even if off work time.
Guardsmark said they wrote the rule that way because they were concerned that if someone talked union while in uniform, it might be construed that they were representing the company. The board gave some credibility to this claim by going on and on about Guardsmark's claim that it would have been fine with them if workers looking to organize covered up the company insignia while doing union business. Ultimately, the Board found the rule unlawful for three reasons: 1) it was too broad and workers could reasonably interpret the rule to mean no talking union in uniform off work time, 2) the justification for the rule was a defense to an allegation that had never been made, and 3) even though the company notified some employees that they could talk union with the insignia covered up, they did not notify enough employees about this.
What makes this case important and unexpected is that the fraternization rule was upheld. Prior to this ruling, any labor organizer would view such a rule as a straight-up illegal impediment to organizing, along the same lines of a boss telling a worker, "You're organizing a union and now you are fired" (which still appears to be illegal.)
In reaching this decision, the Board relied on two recent decisions: Lafayette Park Hotel from Clinton's 1998 board, and Lutheran Heritage Village-Livonia from 2004. In Lafayette, the NLRB upheld a work rule that said workers were "not allowed to fraternize with hotel guests anywhere on hotel property." Clinton's board said that this work rule could not reasonably be interpreted by workers to mean that they would be fired for trying to enlist customers' support for concerted activity, which is, of course, legal. Like, who doesn't know that? Gosh! Freakin' idiots!
So now Bush's board applied this logic to say there is no material difference in the work rules of the hotel and Guardsmark, and so Guardsmark is ok.
Lutheran Heritage Village is mostly about whether a work rule prohibiting "abusive and profane language" was unlawful. This case worked itself into Guardsmark because it also touched on the question of whether a worker would reasonably figure that they could not exercise their rights under the NLRA. Other than that, the case bears no similarity at all. Lutheran involved the firing of a union activist for a verbal spat with other workers after a string of what appears to be pretty write-ups for minor infractions, many of which involved workers ratting on each other in what was clearly a very hostile work environment.
There are specifics to Guardsmark that make it unlikely that this kind of work rule will be adopted wholesale by all kinds of employers. The board said that because Guardsmark is a security outfit, the company has specific security concerns about too much friendliness between their guards and their clients. It wasn't mentioned in the case, but the NLRA already accepts this distinction for security personnel by requiring that they not be combined in bargaining units with other kinds of workers. And while security work is often solitary, most employers would have to do a lot of morale-crushing reconstructing of workplaces to keep workers from "fraternizing."
However, both Lafayette and Guardsmark presume a highly technical knowledge of the NLRA's Section 7 rights by ordinary workers. Being a non-lawyer, I will be the first to concede that any worker who applies his or herself to understanding labor law can develop a basic understanding of what is and is not protected under the Act. But this blows my mind: the Board says a rule against fraternization is ok because nobody would reasonably figure from that that it's not ok to talk to your co-workers about workplace problems.
Clearly the Board is not looking to carve out a safe space for workers to get together and make a union. This case predicts safety only for highly professionalized and routinized labor organizing. But in my entire life as a worker, I can't think of a time when I've been hanging out with a co-worker off work time and issues at work haven't come up for discussion. Under the NLRB's Guardmark rule, it might be a firing offense for us to be hanging out together in the first place (if the employer has a no-fraternization rule) - but once we started complaining about the job, labor law would suddenly kick in to protect us.
It has been a bit alarming over the past couple of weeks to hear the way this case has been described by labor activists - that the NLRB has ruled that off-work socializing is now illegal. While this decision is clearly a setback, the answer from our side is so simple: just 'effin talk about your problems at work, then.
Let's not let this case put a chill on our prospective campaigns by making it more confusing than it is. The Board did not say that it is illegal for workers to fraternize - just that bosses can pass rules restricting fraternization as long as workers won't "reasonably" understand them to prohibit workers getting together to discuss workplace problems.
If an employer is going to enforce such a rule, how will it be done? Will it be workers ratting out each other for asking to hang out? Will the hanging out need to happen first, and then the discussions the workers had with one another be reported to figure out if they were simply fraternal (whatever that is - I'm just glad it doesn't apply to me because I'm a woman) or if they involved concerted, protected activity?