By: Ashley K. Laken, Esq.

In an unpublished decision (Blommer Chocolate Co. of California, LLC, Case No. 32-RC-131048) issued on February 17, the NLRB set aside the results of an election in which the tally of ballots was 18 for and 50 against the union, reasoning that the employer had maintained three overbroad work rules that “could reasonably have affected the outcome of the election.”

The work rules at issue, which were contained in the employee handbook, were: (1) a confidentiality rule that prohibited employees from disclosing employee lists; (2) a computer use rule that allowed employees to use their work computers for personal uses but prohibited them from expressing personal opinions; and (3) a prohibition on employee use of the company name and logo.

The Board majority found that the computer usage rule was overly broad under Purple Communications, 361 NLRB No. 126 (2014), and that the impact of the overbroad confidentiality rule was not mitigated by the union’s possession of the Excelsior list of employee names and contact information for a significant portion of the critical pre-election period.

In finding that the rules could reasonably have affected the outcome of the election, the Board noted that employees were required to sign forms acknowledging that they received the handbook and agreed to follow the rules, and that the handbook stated that the employer would impose discipline when necessary to assure compliance with the rules. The Board found that the lack of evidence that employee activity was actually chilled by the rules was irrelevant. The wide election margin also did not persuade the Board that the rules had not chilled employee activity, with the Board reasoning that the margin reasonably might have been attributable to the coercive impact of the rules. (This seems like a stretch- there was no evidence that any employees were ever disciplined under any of the rules, and if one were to poll the employees and ask them whether they were aware of these rules, it seems probable that the majority answer would be no.)

Member Miscimarra dissented, finding that the rule against disclosing employee lists could not have reasonably affected the outcome of the election because the union was given an accurate Excelsior list at least 22 days prior to the election, mitigating any possible adverse effects caused by the rule. Member Miscimarra also found that there was no evidence that the rule against use of the company name had chilled any unit employees in expressing their union views during the critical pre-election period, reasoning that the union lost the election by a substantial margin and it was inherently improbable that the rule could have chilled protected expression to such an extent as to account for “so lopsided a result.”

Employer Takeaways

The decision provides a cautionary tale for employers. It illustrates how an employer might win a union election by a wide margin, only to have the result thrown out because the union finds and points to never-enforced rules in the employee handbook that the current Board would find to be overbroad. Employers would therefore be well-advised to work with their labor lawyers to evaluate their work rules and handbooks for potential overbreadth under the Board’s current interpretation of the NLRA.