In Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011), the National Labor Relations Board held that the existence of three unenforced but overbroad rules in the employer’s handbook required the setting aside of election results in which employees had voted to decertify their union.  This decision makes it easier for unions to argue that overbroad handbook policies affected election results.  Of equal importance, the decision casts doubt on the effectiveness of disclaimer language in which an employer advises employees that “they have rights under the National Labor Relations Act which supersede any possible interpretation of the rules in the handbook.”

The Board found that the employer maintained three overly broad policies in its employee handbook — a “no solicitation or distribution” policy, a “loitering” prohibition, and a “grooming” policy banning the wearing of buttons — and that each policy constituted objectionable conduct that reasonably tended to interfere with employees’ Section 7 rights.  This decision is particularly troublesome for employers given the extent of the employer’s efforts in this case to avoid an inference that its handbook rules interfered with the free exercise of employees’ Section 7 rights.   The record shows that the handbook rules had been in place for two years without prior objections from the union; the handbook was not distributed or emphasized during the critical election period; the rules were not enforced against any protected activity; and when issues of potential ambiguity arose, the employer even issued a memorandum clarifying its intent, amending two of its policies and eliminating the third policy entirely.

The Board reasoned that despite the fact that there was “no evidence that any employees were actually deterred from engaging in campaign activity,” the results of the election decided by a one vote margin “might have been affected” by the maintenance of the three rules and “the election must be set aside [where] the maintenance of these rules ‘could . . . reasonably have affected the results.’” In so holding, the Board rejected past precedent that had declined to overturn election results based upon the mere existence of an overbroad rule. 

In addition, the decision casts doubt on whether simple disclaimer language (e.g., “Nothing in this handbook is intended to interfere with employee’s rights under the NLRA”) will be enough to counteract an overbroad handbook rule.  The majority did not comment on the hearing officer’s findings that “the Employer’s disclaimers did not cure the overly broad and improper rules [because] Employees cannot be expected to understand the nuances of the National Labor Relations Act so that they would know that a rule, as written, was improper and thus, need not be followed.”   

While this case arose in the context of a decertification election, its holding is applicable in all forms of elections, which means that overbroad employer policies may become an opportunity for unions to re-run certification elections if the union loses the first election by a narrow margin.  As such, the Board’s decision highlights the crucial need for employers to carefully craft policy and disclaimer language in their handbooks to avoid the disruption of election results.

Read Littler's ASAP on this case here.

This entry was written by Thomas Dowd and Allison Kehl.

(photo credit: Jitalia17)