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NLRB Decision Presents a Cautionary Tale about Employee Handbooks

In a decision issued on March 28, 2011, the National Labor Relations Board (NLRB) held that an employer’s mere maintenance of an “overbroad rule” in its employee handbook was sufficient to warrant setting aside election results in a union related election.  Jurys Boston Hotel, 365 NLRB No. 114       (3/28/11).

In this case, the employees of the hotel sought to remove a union through what is known as a decertification process.  Much like a union organizing election, employees must vote by secret ballot about whether or not they want to be unionized.  The union had organized the employees years prior without much resistance by the employer.  In fact, many commentors on this case have noted that the employer had an almost “positive approach” toward the union during the initial union organizing campaign.  Nevertheless, the employees over a period of time became dissatisfied with the union and sought to remove it.

After the employees voted to decertify the union, union officials filed objections with the NLRB which stated in essence that the employer’s handbook policies were “overbroad” and infringed on employees’ rights under the National Labor Relations Act (NLRA).  Specifically, the hotel had policies (which appeared in most employers’ handbooks) involving “No Solicitation or Distribution”, a “No Loitering” policy, and a dress code policy that banned the wearing of buttons.  Even though these policies had been in effect for two years without any union objection, the union officials who contested the decertification process claimed that these policies discouraged employees from communicating about the union and/or their terms and conditions of employment.  The NLRB agreed.  As a result, the decertification election was overturned and the union was given a second opportunity to resist the employees’ efforts to remove them. 

While this decision involved a decertification election, its implications are clear; it will be much easier for unions to overturn close union organizing elections in the future by arguing that overbroad policies could have affected the outcome of the election.  Unions looking to organize particular companies will likely now review the targeted employers’ handbooks.  If they find what they feel are overbroad policies, they will file objections to union election if they lose.  This will give them a “second bite at the apple”.  

Based on this decision, employers should carefully review their handbooks to ensure that their policies are not overbroad in this context.  The NLRB has suggested that an employer include disclaimers in the handbook associated with policies such as No Solicitation and Distribution, dress codes, etc. that specifically state that these policies are not intended to infringe on an employee’s rights under the NLRA. 

If you need any assistance with reviewing your policies and/or drafting any needed disclaimers, please feel free to contact us.

 

Excerpted from the June 2011 edition of "Employment Law Matters".  To view the entire newsletter, please click here.