Yet Another Reason for Employee Handbook Audits

April 14, 2011

While union membership has declined steadily over the past several decades, it is clear that the current administration is an advocate for organized labor. President Obama has appointed two of the most overtly pro-union members to the National Labor Relations Board (NLRB) that we have seen in years. Craig Becker, one of Obama’s early appointees who was rejected by the Senate but appointed during the 2010 Easter recess, serves as associate general counsel to the Service Employees International Union and the AFL-CIO. It is his stated opinion that employers “should be stripped of any legally cognizable interest in their employees’ election of representatives.” Translated — employers should not be allowed to oppose union organizing drives. While pro-union legislation has failed to garner adequate support in Congress, the NLRB has the authority to enact procedural changes that could short circuit what unions are clamoring for-greater employee rights at the expense of employers.

This fact is certainly being reflected in the NLRB’s rulings. Recently, the NLRB found that the existence of three objectionable rules contained within an employee handbook were sufficient to overturn the results of a decertification election. In Jurys Boston Hotel, 356 NLRB No. 114 (2011), the employer had voluntarily recognized the union as its employees’ bargaining representative. Two years later, the employees filed a petition seeking to decertify the union and the Board scheduled the requested election. The hotel had a 63 page employee handbook containing the regular rules and regulations that might be found in any typical handbook. However, after the election petition was filed, the union filed an unfair labor practice charge challenging three policies within the handbook: 1) No Solicitation Policy; 2) No Loitering Policy; and, 3) Grooming Policy banning wearing of buttons. Those policies had been in effect for two years without the union raising any complaints prior to the requested election. The employer, in response, voluntarily revised two of the policies and deleted one in its entirety. That should have fixed the problem, right? Wrong.

While the original hearing officer found that the policies were objectionable, they “did not require setting aside the election because they were promulgated before the employer recognized the union, were not enforced or cited by the employer during the critical [election] period, and were not shown to have deterred any employee from exercising Section 7 rights.”

The NLRB majority overturned the hearing officer’s ruling, finding that the policies in question were objectionable and that “[e]ach of these rules, in force during the critical election period, reasonably tended to interfere with employee free choice.” The Board also found that the fact that the election was decided by a single vote proved that the rules could have affected the results.

This all points to the inescapable conclusion that the NLRB will do whatever it can to promote the growth of organized labor. Accordingly, employers should do whatever they can to ward off potential claims of unfair labor practices, including having their handbooks reviewed to make sure they are compliant with current labor laws.