In another 2-1 decision, the NLRB has set aside a September 21, 2006, decertification election at a Boston hotel based on objections by the union that the hotel maintained a two-year-old employee handbook containing several rules that were overbroad and unlawful under the National Labor Relations Act.
Liebman and Pearce agreed that the hotel's rules on solicitation, distribution, loitering, and clothing standards were unlawful. Conceding that there was no evidence that these policies had been enforced against legally protected activity during the "critical period" before the election, Liebman and Pearce nonetheless concluded that the employer's merely maintaining the improper rules required setting aside the narrow 47-46 vote to decertify the union.
Hayes, again, was the lone dissenter. He noted that, after the union filed an unfair labor practice charge concerning the handbook provisions, the employer issued a memo to employees that announced the elimination of the rule on buttons and badges and clarified a rule on workplace distributions in accordance with Board precedent. According to Hayes, the totality of circumstances related to the maintenance of the rules showed that (1) they were not promulgated in response to union activity; (2) they were not enforced against anyone engaged in union activity; (3) the employer assured employees before and during the election period that nothing in the handbook was meant to interfere with their rights under the Act; (4) the union was on the scene and available to advise employees about their rights. In addition, Hayes said, there was evidence that employees may have violated the rules without consequence. For all of these reasons, Hayes said that the evidence weighed heavily in favor of finding the rules did not have a potential chilling effect on the Section 7 rights of any employee.