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April 5, 2011
National Labor
Relations Board Overturns Decertification Election Victory For
Employer Because of Its Unlawful Handbook Policies
By: Kurt M. Graham
In a 2-1 decision, Jurys Boston Hotel, 356 NLRB
No. 114 (2011), the National Labor Relations Board
("NLRB"), set aside the results of a decertification
election that the employer won by a 47-46 vote because its employee
handbook contained three policies pertaining to solicitation,
loitering, and wearing of emblems and buttons that were overbroad and
unlawful under the National Labor Relations Act ("NLRA").
The NLRB conducted the disputed decertification election
in September 2006. Two years earlier, the handbook with the
challenged policies was distributed to bargaining unit employees and
they were asked to sign forms acknowledging that they would read
it. The handbook was discussed at employee orientation sessions
attended by union representatives and the union also received copies
of the handbook. The union never objected to any of the
handbook provisions. However, six weeks after the
decertification petition was filed and nine weeks before the
election, the union filed an unfair labor practice charge alleging
that seven of the handbook policies were unlawful. Although the
union objected to the handbook and filed an unfair labor practice
charge, the NLRB still proceeded with the decertification
election. After the union lost, it filed objections seeking to
overturn the results, in part, because of the disputed handbook
provisions.
In reviewing the merits of the union's election
objections, the NLRB found that "[t]here was no showing that the
rules were enforced against protected activity, and no employees were
hired or given the handbook during the critical period."
The policies were also not promulgated in response to union
activity. Nevertheless, the NLRB concluded that unlawfully
overbroad handbook provisions pertaining to solicitation, loitering,
and wearing of emblems and buttons constituted sufficient grounds for
overturning the election results. The NLRB found it sufficient
that merely maintaining three overbroad and unlawful policies, when
considered in conjunction with the closeness of the vote, was
sufficient to set aside the election results and order a new
election.
By ordering a new election, the NLRB reversed a decision
from an NLRB Hearing Officer upholding the election results.
NLRB Member Brian Hayes, who dissented, agreed with the NLRB Hearing
Officer's finding that the union failed to demonstrate any of the
handbook provisions had a chilling effect on employees' ability to
exercise a free vote concerning union representation. "In
sum," Hayes wrote, "the totality of circumstances related
to the maintenance of these rules shows 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 incumbent union was on the scene and
available to advise employees with respect to these rights; (5)
there is evidence that employees may have violated the rules
without consequence; and (6) the evidence weighs heavily in
favor of finding that the rules' potential chilling effects on
Section 7 rights did not have that effect on any employee."
The
Jurys Boston Hotel decision underscores the importance that
employers implement lawful handbook policies which comply with the
NLRA. An employer's failure to carefully draft its policies may
not only violate Section 8(a)(1) of the NLRA but also result in
overturning the results of an election in which the employer has
prevailed. As demonstrated by Jurys Boston Hotel, where
the results of a representation election are very close, the mere
maintenance of overbroad handbook policies may be enough to overturn
the election results. In order to avoid possible liability
under Section 8(a)(1) of the NLRA and the potential need to rerun a
representation election that was previously won, employers are
encouraged to review their handbook policies and revise them, as
necessary, to ensure that they comply with NLRA.
If
you have any questions about the impact of the Jurys Boston Hotel
decision please contact Kurt Graham at (616) 608-1144, or kgraham@clarkhill.com, or
your Clark Hill Labor and Employment attorney.
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