An employee handbook is an important tool for employers to set forth their rules and expectations of employees and to ensure compliance with labor laws. A recent National Labor Relations Board (“NLRB") decision gives employers a good reason to reexamine and update their employee handbooks. In Jurys Boston Hotel, 356 NLRB No. 114 (3/28/11), the NLRB addressed whether the results of a decertification election must be set aside due to several objectionable rules contained in the employee handbook, even though those rules have never been enforced and even where there is no evidence that any employee was prevented from engaging in any protected activity.
The employer operates a hotel in Boston, which opened in July 2004. Before the hotel opened, the employer and the union entered into a neutrality agreement, which required the employer to be neutral or positive about union representation. In July 2004, the employer recognized the union as the exclusive representative of its nonsupervisory employees. The employer signed the union’s master hotel contract in October 2004. On June 2, 2006, the petitioner filed a decertification petition following the expiration of the master contract without a successor agreement.
The employer had an employee handbook that it issued to all new employees after the hotel opened. There was no evidence that the rules in the handbook were enforced against protected activity and the union had not objected to any rules in the handbook before the decertification petition was filed. Nonetheless, on July 17, 2006, six weeks after the petition was filed and nine weeks before the election, the union filed an unfair labor practice charge claiming that seven rules in the handbook were unlawful. The NLRB’s decision turned on three of those rules. They included one that prohibited solicitation and distribution on hotel property, one that prohibited employees from loitering inside or around the hotel without permission, and one that prohibited employees from wearing emblems, badges or buttons with messages on their uniform. In response, on Aug. 7, 2006, the employer issued a memo to the employees stating that several rules in the handbook were not intended to interfere with the employees’ NLRA rights and announced amendments to several rules.
In September 2006, the decertification election was held. The employees elected to end union representation with 46 votes for and 47 votes against the union. After the election, the union filed objections to the rules it challenged in the unfair labor practice charge. The hearing officer held that the employer’s maintenance of the rules in the handbook did not require setting aside the election. This decision was based on the facts that the rules were promulgated before the employer recognized the union, the rules were not enforced or cited by the employer during the election period and the rules were not shown to have deterred any employee from exercising Section 7 rights.
In a 2-1 decision, the NLRB held that the decertification election must be set aside. The board concluded that the rules tended to interfere with employee free choice. Accordingly, the election must be set aside if these rules could reasonably have affected the election results. The board acknowledged that the rules were not enforced against the employees during the period before the election and there was no evidence that any employees were deterred from engaging in campaign activity. However, the board has previously set aside elections based on employers’ mere maintenance of objectionable rules. In this case, the rules had a reasonable tendency to chill or interfere with the pro-union campaign activities of employees during the election period. In addition, the employees could interpret the employer’s maintenance of the rules as precluding them from communicating regarding the terms and conditions of their employment at the workplace. The rules might have affected the election results, especially where, as in the case here, the election was decided by a single vote. Accordingly, the board held that a second decertification election must be held.
This decision serves as a reminder to employers of the importance of routinely reviewing their employee handbooks to minimize liability and to ensure that their rules are compliant with labor and employment laws. An employer’s failure to do so could make it easier for a union to challenge an election. Accordingly, employers should consult with counsel to develop and implement clear rules and practices that will not be interpreted as restricting the employees’ NLRA rights or being overly broad.