As I have commented in this space multiple times, under the Obama Administration, government agencies (particularly the U.S. Department of Labor, the Equal Employment Opportunity Commission and the National Labor Relations Board) have given manufacturers great incentives to review and update employment policies in light of an aggressive enforcement environment. The National Labor Relations Board (“NLRB” or “Board”) has now given manufacturers even more reason to do so.
In Blommer Chocolate Company of California, LLC, 32-RC-131048 (unpublished), a divided NLRB overturned the results of a representation election in which the employer prevailed by nearly a three-to-one margin because the employer maintained what the Board characterized as “overbroad” rules in the employee handbook. In that case, following a secret-ballot election in which the employees voted against unionization 18 to 50, the union filed election objections contending that three work rules contained in the employment handbook “tainted” the election results. The challenged rules were those which many manufacturers typically include in handbooks. One prohibited employees from using the employer’s name or logo without permission. A second permitted an employee occasionally to use the company’s phones, email system and computers for personal use, so long as the employee did not use those means of communication to advocate personal opinions. The third rule prohibited employees from disseminating “confidential information,” and included within the definition of “confidential” information regarding employees, including lists of employees. Consistent with the NLRB’s current interpretation of such rules, a two-to-one Board majority found the rules to be unlawfully broad and invalided the election results. Surprisingly, the Board conducted no analysis and rejected any obligation to show that the maintenance of the rules impacted any employee in any way. (The Hearing Officer conducting the underlying hearing noted that there was no evidence at all the company ever tried to enforce the rules in a way to prevent employee pro-union activity.) The Board ignored the evidence of non-enforcement. Indeed, there was no evidence cited by the Board as would show the employees were even aware of the rules in question.
The lesson from Blommer Chocolate seems clear. Mere maintenance of a rule found by the Board to be overly broad, without regard to whether the employer attempted to enforce it and notwithstanding an overwhelming employee vote against representation, will be sufficient to overturn a pro-employer election.
Manufacturers would be well served to periodically review and update handbooks, work rules and policies to take into account the ever changing legal landscape. Failure to do so could result in a permanent union election “do over,” with the corresponding uncertainty, disruption and expense.