NLRB Rules That Unlawful Solicitation Rule Is Not Grounds to Rerun Election
 
June 14, 2005
 

On February 7, 2005, the National Labor Relations Board (Board) ruled that an unlawful solicitation rule was not the basis for overturning a union representation election. In Delta Brands, Inc., 344 NLRB 10 (2005), Chairman Battista and Member Schaumber concluded that there was no evidence that the rule was enforced or that it interfered with any employee’s Section 7 rights under the National Labor Relations Act (Act).

In Delta Brands, the rule, which was contained in the employee handbook, prohibited employees from “vending, soliciting, or collecting contributions for any purpose unless authorized by management.” The hearing officer found that the overly broad no-solicitation rule was fresh on the minds of three employees, and that given the closeness of the election, and the small unit size, reasonably could have affected the results of the election. The employees had rejected representation by the International Association of Machinists by a vote of 10 to 8. The hearing officer noted that one employee was hired and given the rule during the critical period; a second employee was given the employee manual three days before the petition filing; and a third employee was given the manual less than six months before the election.

The Board, in an unwritten decision, had previously remanded the case to the hearing officer for the taking of additional evidence on the issue of whether the rule had been disseminated to employees. The Board majority, in concluding that there was no basis to set aside the election, noted that the rule was not adopted in response to a union organizing campaign, that it was part of a 36-page employee manual, and that only one employee received that manual during the critical period. The Board also noted that there was no evidence that the employer called the employees’ attention to the rule, including the employee who received the handbook during the critical period, and that there was no evidence that the rule was enforced.

Concluding that the burden of proof on parties seeking to set aside an election is a heavy one and had not been met in this case, the Board noted that the rule had never been enforced, and that solicitations had been allowed for numerous other causes, such as Girl Scouts and Christmas gifts. Disagreeing with the dissent, the Board stated it was not departing from precedent, and concluded that it was not axiomatic that an unlawful no-solicitation rule requires setting aside an election. Rather, the majority stated that the Board must look to all the facts and circumstances to determine whether the election must be set aside. The Board noted that its decision was consistent with it approach in Safeway, Inc., 338 NLRB 525 (2002), where the mere existence of an overbroad rule will not justify overturning an election where the union was in a position to advise employees of their rights.

In dissent, Member Liebmann stated that the Board was reversing well-settled Board law in which an employer’s mere maintenance of an unlawful rule was not only objectionable conduct, but sufficient grounds to set aside an election. She accused the majority of reallocating the burden of proof to the objecting party to show more than that the rule was maintained.

Delta Brands, Inc. is an important decision for employers facing or concerned about organizing drives. While all employers should have their no-solicitation rules reviewed for legality, Delta Brands provides an employer with some possibility that an election will not be set aside merely because of the existence, perhaps inadvertently, of an overbroad no-solicitation rule.

For more information, e-mail Mark A. Spognardi at mark.spognardi@hklaw.com or call toll free, 1-888-688-8500.

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