The NLRB continues its march to expand the influence of unions in the workplace, this time revisiting an issue that has been the subject of much litigation over the years.  In a recent decision in Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011).pdf the NLRB ruled (2-1, no surprise Member Hayes dissented) that the employer’s handbook rules were sufficient, standing alone, to overturn a decertification election in favor of ending union representation.

The facts of the case underscore the breadth of the ruling:  The employer operates a hotel which opened in July 2004.  Before the hotel even opened, the employer entered into a neutrality and card-check arrangement with the union where it ultimately agreed to accept the union on the basis of authorization cards without an election. The parties then entered into a collective bargaining agreement.  When the agreement expired, an employee filed a petition to decertify the union.  The employer had in place since opening a 63 page handbook. Employees were asked, “though not required, to sign a receipt for the handbook at the time they received it, stating they ‘will’ read it.”

The employer, bound by the neutrality agreement, directed supervision to act in a “neutral if not positive” fashion regarding union representation during the decertification campaign.  So, this could not have been a hotly contested campaign.

The union never said a word about the handbook, that is, until the employees decided they wanted the opportunity to actually vote in a secret ballot election on whether to continue representation.  Specifically, after the petition was filed the union filed an unfair labor practice charge alleging, among other things,  the handbook’s rules regarding solicitation, loitering on premises, and the wearing of buttons were unlawfully overbroad. There is no evidence the employer ever enforced any of the rules in question, either before or after the filing of the petition.

The employees elected by a vote of 47 to 46 to end union representation.  The union challenged the result, filing objections asserting, among other things, that the same handbook rules interfered with employee free choice.  The hearing officer overruled all of the objections, citing Safeway, Inc., 338 NLRB 535 (2002).pdf, a case where the NLRB refused to overrule a decertification election based on a confidentiality policy that arguably was overbroad, noting

There is no indication that the confidentiality rule has ever been enforced, or that it has ever placed any impediment on the ability of employees to discuss terms and conditions of employment with the Union, or with other employees.  To the extent that any employee was confused about their statutory right to do so, the Union was ideally placed to advise the employees of their rights to do so.  There is no evidence that the Union was ever called on to do so, or that, prior to decertification, the Union viewed this rule as in any way infringing on employees’ Section 7 rights.

Despite this precedent, the NLRB in Jurys Boston found Safeway, Inc. distinguishable because, incredibly,

First, unlike the incumbent union in Safeway, the Union here did not fail to challenge the unlawful rules ‘prior to its decertification.’  Rather, it filed an unfair labor practice charge based on the rules 9 weeks before the election.  After a challenge to the Union’s bargaining status was raised for the first time, the impact of the employee’s rules on employees’ right to campaign acquired new significance.

This reasoning is remarkable.  The employees in the case were never required to even acknowledge receipt of the rules.  Although it is not stated in the decision, that result is likely because the union insisted during bargaining, as often is the case, that employees cannot be required to sign handbook acknowledgements.  In other words, the union likely took the position that the handbook was something subordinate to the collective bargaining agreement, which probably contained its own work rules.  Unlike most places of employment, there is not even an acknowledgement that says the employees received or were otherwise aware of these rules.

The fact the union challenged the handbook rules in this case as a distinguishing factor also rings somewhat hollow.  Absent any evidence the rules were ever important to employees who were not required to read them likely means the rules gained “new significance” because the union challenged them, not because employees were thinking about them.  The union, the representative of the employees could have taken a public position that the rules in question were not enforceable; it did not.  The union hedged its bets by lodging an unfair labor practice.  Had the union actually believed the rules were playing a part in the decertification campaign, it was within its control to block the election until the legal issues were sorted out; it did not exercise this option.  Instead, the union waited to learn the outcome of the election, and then complained that the rules somehow played a part in the result. The decision makes it more likely an incumbent union will scour an existing handbook for potentially overbroad policies and then file a charge.

It still is good policy for employers to maintain handbooks.  Written policies are needed to make sure the entire workforce, management and supervision, understand the rules of the workplace.  This decision underscores the need, however, to routinely review such handbooks to make sure there are no legal landmines that could be tripped later on when it is convenient. Such a review and re-issuance, if necessary, can save a lot of time and resources.  Jurys Boston is especially noteworthy because it took place in a decertification setting.  The NLRB has held that overbroad handbook rules can serve as the basis to overturn a representation (as opposed to decertification) election.  See  Freund Baking Co., 336 NLRB 847 (2001).pdf

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.