By Michael Burns, courtesy of SBAM-approved partner, ASE
It used to be inadvisable to cover unionized workers under the policies of an employee handbook. This was because the collective bargaining agreement was the policy/rule book for that set of employees. For some time now, some employers that have both union and non-union workers have included the union employees as covered by the handbook by including handbook disclaimer statements addressing this. The disclaimer statement would be put at the front of the handbook or many times throughout the handbook to state that where a handbook policy subject was also addressed in the collective bargaining agreement (CBA), the CBA would control for the unionized workforce. Done and done, right? Not so quick.
Most of what this article addresses would only apply to employers with both union and non-union employees. Why have the handbook cover both? The thinking is that even though some of the employer policies are superseded by the CBA, the handbook also covers some issues that would not be covered by the CBA. Having one handbook also promotes a more egalitarian employee relations culture.
One other important labor principle impacts the issue of employee handbooks that everyone, union or non-union, must understand. The National Labor Relations Board (NLRB) through its authority under the National Labor Relations Act (NLRA) can oversea employee handbook policy application regardless of whether the handbook covers a union or non-union workforce or both. The NLRA states that all employees (union, non-union, and non-supervisory) have the right to engage in protected concerted activity. This means that if an employee handbook policy addresses wages, benefits, and terms and conditions of employment, the NLRB has some say over how those policies may be applied. Much of what is in a handbook addresses wages, benefits, and terms and conditions of employment.
The intersection of union workers, employee handbooks, and the NLRB is a pretty small intersection. If unionized, many employers will let the CBA speak for the union workers and have the employee handbook apply just to the non-union workers. But as stated above, some employers have their handbook address both.
What happens if an employer makes a change (unilaterally) to its employee handbook? Does this require the employer to negotiate with the union over those changes even if the handbook stated that in the event the particular handbook policy is addressed in the CBA, the CBA would control?
In a recent administrative law decision, the NLRB held that regardless of whether the policies in the handbook deferred to the collective bargaining agreement; regardless of whether the employer actually implemented the policies; or regardless of whether the employer was in between CBA’s and was in the process of re-negotiating, if the handbook was issued to employees with new terms in it, the employer committed an unfair labor practice (violating Sec. 8 of the NLRA ) by not negotiating those changes.
The ALJ’s decision focused on the fact that most of the changes in the newly issued handbook addressed terms and conditions of employment (as one may expect in a handbook). The changed terms were also per the NLRA mandatory subjects of bargaining, and therefore, the company still had to negotiate with the union before issuing the employee handbook to all employees.
Again, this situation is not a widespread employer concern except for employers with both a union and a non-union workforce that wants an employee handbook covering all employees. However, employers that do not have a union should not adopt the belief that even with a non-union workforce the NLRA does not affect them. Under federal labor law, non-union employees have protected rights under this law too.
Sources: Law360 Employment Authority Expert Analysis. Handbook Hot Topics: Changing Status Quo in a Union Shop