PERB: Employee Birthday Celebrations are “Non-Work” Activities

County of Orange (2018) PERB Dec. No. 2611-M (Issued on 12/19/18)

In this case three county employees, who were union representatives, spent 30 minutes distributing union surveys to employees at their work stations during working hours. They were later told by a county manager to stop distributing the union surveys to employees in work areas during work time. The ALJ found that the county’s directive interfered with protected rights because the County allowed other similar “non-work” activities. The Board affirmed.

The Board first acknowledged that “work time is for work” and that an employer may restrict non-business activities during work time. However, the Board emphasized that an employer “may not single out union activities for special restriction, or enforce general restrictions more strictly with respect to union activities.” Here, the Board noted that there was evidence the county “disparately” enforced restrictions on employee activities because the county allowed “employee-run social committees to fundraise for office parties, birthday celebrations, and other social events or team-building activities during other employees’ work time.” Because the county allowed such activities, but prohibited employees from distributing union surveys, the Board found that the county disparately enforced what would otherwise be reasonable restrictions on non-business activities.

In reaching this holding the Board rejected the county’s argument that the “social committees” served a business function because they promoted morale and team-building.  The county argued that PERB should not characterize such activities as non-business. But the Board rejected this argument holding that, “We have consistently held that management may not regulate workplace access based on which non-business activities, in its view, promote workforce morale.”

Comments:

  1. I have no issue with the notion that an employer cannot allow some types of non-work activities but then prohibit union ones. Thus, if you allow an employee to set up to table to sell girl scout cookies you can’t prohibit someone from setting up a table to distribute union literature. That’s why I always urge employers to be cautious about such non-work activities.
  2. However, I take issue with the Board’s characterization of the activities at issue here as “non-work.” It seems overly restrictive to me. Many employers allow employees to take some work time to celebrate birthdays. In my mind, there is a discernible difference between someone selling girl scout cookies for his or her kid versus employees celebrating a colleague’s birthday. The latter has some bearing to the employment relationship while the former does not.
  3. Although unclear, I have to believe that the three county employees were themselves not on work time when they were distributing the union surveys. If so, the lesson here is to have a clear separation between productive work time and work time involving social activities, with the understanding that an employer cannot prohibit union activities while allowing similar social activities.
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