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What your handbook says could hurt you

In Jurys Boston Hotel-356 NLRB No. 114.pdf, the National Labor Relations Board (NLRB) recently decided that regardless of whether or not an employer enforces its handbook policies, the mere existence of a policy deemed unlawful by the NLRB may have a significant impact. Indeed, the NLRB served up a not so gentle reminder of the importance of regularly reviewing and updating your employment policies.

Pursuant to a neutrality agreement, the employer recognized the union, UNITE HERE, and signed onto a master contract in 2004. In 2006, following the expiration of the master contract, an employee filed a petition for a decertification election.

Six weeks after the petition was filed, and nine weeks before the election, the union filed an unfair labor practice charge alleging that seven rules in the employer’s handbook were unlawful. Included among the alleged unlawful rules were: (a) a non-solicitation/non-distribution rule; (b) a non-loitering, non-use of hotel premises for personal use policy; and (c) a grooming policy that prohibited the wearing of emblems, buttons, or badges not part of the uniform.

Since the hotel had opened in 2004, the employer issued the handbook, including the disputed policies to all employees. It was undisputed that the employer did not enforce the disputed rules. Further, the union received copies of the handbook as part of the new hire orientation. At no point prior to the filing of the charges, however, did the union object to the handbook.

Three weeks after the union filed the charges, the employer issued a memo to its employees explaining that it had no intention of interfering with employees’ rights under the National Labor Relations Act (NLRA) and amending several of the rules.

The union lost the election by one vote and filed objections to the election based upon the employer’s maintenance of the alleged unlawful work rules. A hearing was held and the NLRB hearing officer ruled that the maintaining of rules that were not enforced did not interfere with the election.

In a 2-1 decision (Member Hayes, dissenting, again), the NLRB overturned the hearing officer’s decision and ruled that the mere maintenance of the unlawful rules tended to interfere with employee free choice, and therefore tainted the election – even though they were never enforced; even though the union had known of the rules for over two years before it objected; and even though the employer attempted to cure any defects three weeks before the election took place. The NLRB ordered a second decertification election.