Overbroad Policy in Employee Handbook Found to Violate National Labor Relations Act

By Henry W. Sledz Jr.

Employers take note, whether unionized or union free: some common handbook language may unwittingly subject companies to violations of the National Labor Relations Act ("NLRA" or the "Act"). As noted in prior Updates, the current National Labor Relations Board ("NLRB" or the "Board") has closely scrutinized employer handbook provisions to determine if any such provisions are overly broad and thus unlawful under the NLRA. A striking example of this scrutiny can be found in the NLRB's recent decision in Jurys Boston Hotel, 356 NLRB No. 114, decided March 28, 2011. In this case, a 2-1 majority of the Board ruled that a decertification election must be set aside as a result of objections filed by UNITE HERE Local 26 alleging that several provisions contained in a two-year-old handbook were unlawful.

The hotel and Local 26 entered into a collective bargaining agreement in October, 2004. The parties were unable to reach an agreement when the CBA expired in 2006, and a petition for a decertification election was filed in June 2006. Shortly before the election was held on September 21, 2006, Local 26 filed unfair labor practice charges alleging that the hotel violated Section 8(a)(1) by including and maintaining overly broad provisions in its handbook. Local 26 pointed to seven specific rules, including one that prohibited employee solicitation and distribution "on hotel property." Local 26 also contended that a rule that prohibited employee "loitering" on hotel premises and one that restricted employees from wearing unauthorized "emblems, badges, or buttons with messages of any kind" on their uniforms violated the Act as well.

After losing the decertification election by a 47-46 vote, Local 26 filed objections, including the allegations that the hotel maintained the overbroad handbook provisions during the "critical period" between the filing of the petition and the actual decertification election. Although an NLRB hearing officer recommended that the objections should be overruled, the Board decided that the objections should be sustained and the results of the election overturned.

Despite acknowledging that the hotel did not enforce the rules during the critical period in a manner that would violate the NLRA, the Board majority still decided that the election should be set aside, finding that the rules in question bore a close "relationship to election-related activity" and thus had a chilling effect on the employees' exercise of their Section 7 rights. Given this, and the fact that the election was decided by a single vote, the majority concluded that the election objections should be sustained.

This case is important to all companies, even if they are union-free. Although the Jurys Boston Hotel case was decided in the context of a decertification election to remove the union, it is likely that the current Board would similarly set aside the results of an initial representation election if the employer maintained overly broad policies. All employers would thus be well-advised to do a thorough review of their policies and handbook provisions to insure that such are not overly broad under the standards of the current Board majority.

RECENT LABOR AND EMPLOYMENT PUBLICATIONS

"EEOC Issues New Regulations Implementing the Amendments to the Americans With Disabilities Act," Labor and Employment Update (March 28, 2011)
"Title VII Can Protect Third Parties from Retaliation," Labor and Employment Update (January 27, 2011)
"Recent California Appellate Court Opinion Underscores the Importance of a Well Drafted E-mail and Internet Usage Policy," Labor and Employment Update (January 20, 2011)
"Supreme Court Grants Review in Wal-Mart Class Action," Labor and Employment Update (December 6, 2010)

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