D.C. Circuit: Overbroad rules held unlawful even absent evidence of enforcement

By Brian E. Spang Feb 23, 2007

Overbroad work rules prohibiting employees from fraternizing, soliciting and registering complaints outside the chain of command violate federal labor law even though the rules were never enforced, according to the U.S. Circuit Court of Appeals for the District of Columbia.

In a unionized company, a work rule that “would reasonably tend to chill employees in the exercise of their statutory rights” violates federal labor law. The core of these statutory rights includes the ability to discuss the terms and conditions of employment and enlist support both inside and outside the company about workplace complaints.

Guardsmark LLC, a security services company, distributed a handbook to all uniformed employees. The union filed unfair labor practice charges alleging that three rules violated their members’ statutory rights under the National Labor Relations Act.

First, the fraternization rule stated that “while on duty you must NOT … fraternize on duty or off duty, date or become overly friendly with the clients’ employees or with co-employees.” Guardsmark argued that it had a legitimate safety interest in banning personal entanglements “that could cloud a security guard’s judgment.”

The court agreed, but found fault with the highlighted language. The court observed that the primary dictionary definition of “fraternize” was “to associate or mingle as brothers or on fraternal terms.” Unions, of course, are a species of fraternal organization. The court therefore concluded that employees could reasonably interpret the rule to bar them from discussing terms and conditions of employment among themselves at any time. The court noted that the rule would have passed muster if Guardsmark had either eliminated the highlighted language or limited the definition of “fraternize” to encompass only romantic activity.

Second, the solicitation rule prohibited the “solicitation and distribution of literature not pertaining to officially assigned duties … at all times while on duty or in uniform.” This rule has a legitimate purpose—to ensure that the unofficial activities of employees were not attributed to Guardsmark.

However, union solicitation rules must be limited to “working time.” The court found that the highlighted language was not limited to working time, but also prohibited off-duty solicitation by uniformed employees. Therefore, the rule as written impermissibly restricted “employees’ rights to engage in union solicitation while off duty.” The court suggested that the result might have been different if Guardsmark had communicated to all employees that off-duty solicitation was permissible as long as the employee covered up the company insignia.

Finally, the chain of command rule admonished that “while on duty you must follow the chain of command and report only to your immediate supervisor. … Do not register complaints with any representative of the client.” Employees “have a statutorily protected right to solicit sympathy, if not support, from … customers” while off duty.

The court held that the highlighted sentence was unlawful because it prohibited both off-duty and on-duty complaints to clients. The court rejected Guardsmark’s argument that the “on-duty” limitation of the first quoted sentence should be read into the client complaint prohibition in the highlighted sentence. Adding the phrase “while on duty” to the end of the highlighted sentence might well have saved the rule.

Guardsmark argued that it had never enforced any of these rules in a manner which infringed on employees’ statutory rights. That didn’t matter to the court. The mere maintenance of a rule likely to chill statutory rights “can amount to an unfair labor practice even absent evidence of enforcement,” it explained.

Guardsmark LLC v. NLRB, D.C. Cir., No. 05-1216 (Feb. 2, 2007).

Professional Pointer: In a unionized workplace, operate under the assumption that work rules will be interpreted broadly. Be sure that any restrictive rule or policy is narrowly tailored to meet a specific need. Build in limitations or carve-outs when necessary to allow the rule to coexist with employees’ ability to exercise their statutory rights. A few simple edits would have saved all three rules here.

Brian E. Spang is an attorney with the firm of Connelly Sheehan Harris LLP, an affiliate of Worklaw® Network, in Chicago.

Related article:

The Penalties Employers Face for Violating the National Labor Relations Act (NLRA), SHRM white paper, January 2002.

Editor’s Note: This article should not be construed as legal advice.


Job Finder

Find an HR Job Near You
Post a Job


Join us for the largest and best HR conference in the world, June 23-26, 2019 in Las Vegas.



Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 10,000 companies

Search & Connect