On March 28, 2011, the National Labor Relations Board (Board) sustained a union's election objections regarding provisions of the employer's handbook and set aside the results of a decertification election – even though the employer did not enforce the challenged policies during the election period.

In Jurys Boston Hotel, the employer distributed a copy of its handbook to employees when the hotel opened in 2004 and discussed the handbook at employee orientation sessions. The union, whose representatives also attended the orientation sessions, never complained about the handbook until a bargaining unit employee filed a petition to decertify the union on June 2, 2006 – two years after the handbook was distributed.

Before the Board conducted the decertification election, the union filed an unfair labor practice charge alleging that seven handbook provisions violated the employees' rights under the National Labor Relations Act (Act). Specifically, the union challenged provisions that: (1) prohibited employee solicitation and distribution "on hotel property," (2) limited employee access and "loitering" on hotel premises, and (3) restricted employees from wearing unapproved "emblems, badges or buttons with messages of any kind" on their hotel uniforms.

Despite the pending unfair labor practice charge, the Board conducted the decertification election whereby employees voted, 47-46, to decertify the union. Afterward, the union filed objections to the election, including objections over the employer's maintenance of overbroad handbook provisions during the period between the filing of the decertification petition and the decertification election.

The Board set aside the election, even though the employer: (1) did not hire any bargaining unit employees or distribute its handbook during the pre-election period, (2) never enforced the challenged rules in a manner that would violate the Act, and (3) distributed a memo to all employees after the union filed the unfair labor practice charge eliminating the rule prohibiting unapproved buttons and badges and clarifying the rule on workplace distributions to comply with the Act. In reaching its decision, Chairwoman Liebman and Member Pearce stated that Board precedent does not require a union, objecting to an employer's overbroad rule, to demonstrate the employer actually enforced the rule or deterred employees from exercising their right under the Act. Rather, the Board majority concluded the election should be rerun "where three objectionable rules … are involved, where there is evidence that one of the rules actually chilled employees, and where a single vote decided the election."

The decision makes it harder for employees who are unhappy with their union to decertify the union. It also serves as a warning to employers who use employee handbooks to have them reviewed by counsel so that its terms comply with Board law.