NLRB Finds Distribution of Employee Handbook to Unionized Employees Lawful, But Troubling Signs for Employers in Dissent
A divided National Labor Relations Board held that an employer’s issuance of an employee handbook addressing terms and conditions of employment covered by a collective-bargaining agreement (CBA) did not violate the National Labor Relations Act (NLRA). But a partial dissent by Chairman McFerran, currently the Board’s lone Democrat, is troubling for unionized employers who generally understand that the employee handbook policies do not supersede or otherwise alter the existing CBA.
Facts: In Stericycle, the employer issued a new version of the company’s employee handbook to all its employees, including at two locations that are unionized. Several handbook policies conflicted with CBA policies concerning attendance, work rules, overtime, and time off, among other subjects. The employer did not represent to employees that the handbook superseded the CBA. Indeed, the first page of the handbook noted that “[s]ome benefits may not apply to union team members and in some cases these policies may be impacted by collective bargaining agreements.” Nor did the employer apply the handbook in a manner inconsistent with the terms of the CBA.
Decision: A two-member majority held that the employer did not violate the NLRA by unilaterally distributing the handbook to unionized employees without first bargaining with the union. The Board dismissed the allegation, concluding that the handbook was “not intended to modify, alter, or change the existing contract,” and reversed the administrative law judge’s finding of a violation. The Board reasoned that the employer did not claim to be changing any terms and conditions established by a CBA, nor did it assert that the handbook superseded the CBA. Rather, the handbook made clear that the CBA trumped the policies in the handbook and that some terms may differ for unionized employees.
Chairman McFerran dissented from the majority’s conclusion. She would have found the unilateral distribution of the handbook to violate the NLRA. Specifically, McFerran reasoned that the handbook conflicted with several key provisions of the CBA, and addressed other mandatory subjects of bargaining not expressly addressed by the parties’ CBA.
Takeaway: Though the handbook distribution was found to be lawful, there are troubling signs for employers lurking in McFerran’s dissent. Many employers have partially unionized workforces. These same employers are often parties to several CBAs, in some cases with differing terms and conditions in each, or even with different unions. Rather than issue site-specific handbooks at every location where it is a party to a CBA, employers often issue a company-wide handbook with a carveout that the terms and conditions established by the handbook do not supersede, alter, or modify working conditions for employees subject to a CBA. But, if McFerran’s dissent is an indication – and we think that it is – a soon-to-be Democrat-controlled Board would find this reasonable and efficient practice to be unlawful, unless the employer first bargains with the union prior to issuing the handbook. One could reasonably ask over what the employer must bargain where, as is often the case, it is making no effort to change any of the unionized employees’ terms and conditions of employment, regardless of whether the term or condition is spelled out in the CBA. We will keep you updated if this issue is teed up by unions for consideration by a Democrat-controlled Board – Republican member William Emmanuel’s term expires in August, and thus Democrats may control the Board as early as this fall.