The NLRB recently overruled a Union's objections to an election conducted September 10, 2002, and certified the results of the election.  The tally of ballots showed 8 for and 10 against the Union.

At issue was whether the Employer maintained an unlawful rule (Rule 31) in its employee policy manual that restricted workplace solicitation.  The hearing officer's initial recommendation was to set aside the election based on Rule 31.  The Board thereafter remanded the case to the hearing officer to take additional evidence on the factual issue of whether Rule 31 had been disseminated to employees. 

In her supplemental report, the hearing officer reaffirmed her finding that the Employer had engaged in objectionable conduct as to Rule 31, which prohibits "[v]ending, soliciting, or collecting contributions for any purpose unless authorized by management."  Accordingly, the hearing officer recommended that one of the Union's objections be sustained and that the election be set aside.

The majority maintained that the rule was not adopted in response to the union's organizing campaign, but that it was part of a 36 page handbook, and that only one employee received the handbook during the critical period.  They wrote: "[W]e have the mere presence of an overbroad rule in a much larger document, with no showing that any employee was affected by the rule's existence, no showing of enforcement, and indeed no showing of any mention of the rule. . . . there is no showing that the mere existence of the rule could have affected the results of the election." 

They said that the burden is on the objecting party to prove its objections, and without such a presumption, that burden is not satisfied here.  The majority stated that their decision is supported by the approach followed in Safeway, Inc., 338 NLRB 525 (2002). 

Delta Brands, Inc., decided Feb. 7, 2005