A three-member panel of the National Labor Relations Board (NLRB) recently found that employee handbook provisions drafted in 2010 supported an unfair labor practice charge, even though those provisions were replaced by acceptable language in 2013.
That panel found that the employer’s issuance of a revised handbook in May of 2013 “did not constitute effective repudiation of its  unfair labor practices” because the company failed to explain to its employees the reasons for the revision. Boch Imports, Inc. d/b/a Boch Honda and Internat’l assoc. of Machinists & Aerospace Workers, 362 NLRB No. 83 (April 30, 2015).
Until May of 2013, Boch Enterprises maintained an employee handbook that included provisions regulating confidential and proprietary information, discourtesy, inquiries concerning employee dress code and personal hygiene, solicitation and distribution, and a social media policy deemed to have been overly restrictive. A complaint was issued on December 31, 2012, alleging violation of Section 8(a)(1) of the National Labor Relations Act (NLRA).
After consulting with the NLRB’s Regional office, the company rescinded the provisions, with the exception of the dress code, which prohibited employees from wearing pins, insignias, or other “message” clothing. The company then issued a new handbook in May 2013 containing corrected provisions, and provided it to all employees who previously had received the prior version.
However, the administrative law judge who originally heard the case, and then the NLRB panel who reviewed it, found that under the prevailing case law, the company did not do enough to repudiate its earlier versions of the handbook policies. Under that case law, in order to relieve itself of liability, an employer’s repudiation must be timely, unambiguous, and “specific in nature to the coercive conduct.” In addition, “such repudiation or disavowal of coercive conduct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights.”
Here, the employer’s 2013 revisions were found to be insufficient to avoid liability for two reasons: first, because one provision (“dress code and personal hygiene”) was left unrevised; and second, because there were no specific assurances to employees that in the future the company would not interfere with the employees’ Section 7 rights, regarding protected concerted activity.
This decision may create frustration among employers who are willing to make revisions in their handbooks once made aware of problematic language or policies. Here, not only did the company revise the offending policies, but it did so after cooperation with – and direction from – the NLRB’s Regional office.
The Region reviewed and approved the 2013 handbook revisions before they were issued. One can only wonder why the communications between the Region and the employer did not include some mention of the need for more explicit language regarding future non-interference with Section 7 rights – language that would have avoided the adverse determination and the penalties imposed in this case.
However, this decision does include template language that can be used by an employer who revises handbook policies after being informed of ambiguity or concern in policy language. Based on this case, wise employers will use such language to assure non-violation of the NLRA.