A Reminder from the National Labor Relations Board:
review your handbooks!

In previous articles in this space, we have suggested that employers should review their employment handbooks for rules and policies that may be found unlawful under the National Labor Relations Act (Act). On March 31, the National Labor Relations Board (Board) issued another such reminder to us all.

The case, Jurys Boston Hotel, 356 NLRB No. 114 (2011), involved a decertification election. Two years after UNITE HERE (Union) became the representative of a unit of the hotel's employees, an employee filed a decertification with the Board and an election was held. The result of the election was close, but resulted in the Union losing the election by one vote—46 votes for the Union, 47 against.

The union filed objections to employer conduct, challenging the result of the election, Notably, the union did not allege that the employer had engaged in any objectionable conduct leading to the filing of the petition or even during the pre-election period. Instead, the Union focused on rules that prohibited solicitation and distribution on company property, loitering on company property, and the wearing of emblems and badges on company property—rules that had been in effect long before the initial recognition of the Union.

In fact, the Board found that, in two different ways, the Union had been well aware of the rules long before the decertification election petition had been filed—the Union had been given copies of the handbook directly and, during the two years the Union represented the employees, Union representatives attended the employee orientation meetings at which the handbooks were distributed to new hires.

In considering the Union's objections to the employer's conduct in maintaining the rules, the Board found no evidence that the policies were enforced against protected activity during the campaign period. The Board also found that no employees had been hired during the pre-election period, and that no handbooks containing the policies had been distributed during the pre-election period. Additionally, after the Union filed an unfair labor practice charge challenging the policies during the pre-election period, the employer issued a memo to the employees, which, among other things, abandoned the policy on emblems and badges.

Further, it was undisputed that that the employer had taken a cooperative position with the Union during the pre-election period, instructing its supervisors to take a "neutral if not positive" line concerning the Union in discussions with employees, and issuing a letter to employees describing its relationship with the Union as "positive."

Despite the evidence of the Union's longstanding prior knowledge of the rules without having voiced any objection, and the employer' lack of hostility toward the Union, the Board, on the basis of the unenforced rules, sustained the Union's objections to the rules, and overturned the election result based merely on the existence of the rules in the employee handbook. The Board explained that "[i]ndividually and together, the three rules could reasonably be construed by employees as precluding them from communicating with each other about the Union and their wages, hours, and other terms and conditions of employment…" While acknowledging that the employer had not attempted to enforce the rules, and noting that little evidence existed demonstrating that the policies had actually a "chilling effect" on employees exercising their rights under the Act, the Board explained that no such evidence was necessary because "the mere maintenance of an overbroad rule can affect the election results…"

Although it has long been the law under that certain policies and rules may be so "inherently destructive of employee rights" under the Act as to be found unlawful simply as written, the result in Jurys Boston Hotel is remarkable in that the Board overturned an election result on the basis of an unenforced employer policy, where the employer engaged in no improper conduct.

While this case involved objections to unenforced rules filed by a desperate union seeking to avoid decertification, the Board's decision may signal a return to active scrutiny of employer policies for their potential to inhibit employees' exercise of rights guaranteed by the Act. At one time, regional offices of the Board were expected to ask employers for a copy of their handbooks and rules as a routine part of investigating any unfair labor practice charge. The policies and rules were then reviewed by the Board investigators to determine if any of the handbook policies or other rules may violate the Act, even unintentionally, and be the basis for formal complaint or a settlement. This decision may be a harbinger of a return to that policy.

All employers, whether their employees are already represented by a union or not, would be wise to have their handbooks and rules reviewed by labor counsel and to consider whether the continued maintenance of all of the policies and rules is worth the risk of an adverse ruling by the Board.

If you have any questions related to the National Labor Relations Board policy, please contact Michael Boldt, Manolis Boulukos or any member of our Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

April 13, 2011