Delta Brands, Inc.

National Labor Relations Board - Board Decisions

Feb 7, 2005

344 N.L.R.B. 252 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 10
252
Delta Brands, Inc. and Machinists District Lodge 290,
Local Lodge 1528 a/w International Association
of Machinists, AFL–CIO, Petitioner. Case 32–
RC–5055
February 7, 2005
SUPPLEMENTAL DECISION AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 28, 2003, Hearing Officer Karen Reich-
mann issued a report and recommendation, sustaining
one of the Union’s objections to an election conducted
on September 10, 2002, pursuant to a Stipulated Election
Agreement, in which 8 ballots were cast for and 10 bal-
lots against the Union. The Employer filed exceptions to
the hearing officer’s supplemental report and a support-
ing brief, and the Union filed an answering brief.
The hearing officer’s initial recommendation that the
election be set aside was based on the finding that, dur-
ing the critical period, the Employer maintained an
unlawful rule (rule 31) in its employee policy manual
that restricted workplace solicitation.1 On November 28,
2003, in an unpublished decision, the Board, by a three-
member panel, remanded the case to the hearing officer
with instructions to take additional evidence on the fac-
tual issue of whether rule 31 had been disseminated to
employees.2
On January 28, 2004, the hearing officer issued a sup-
plemental report, reaffirming her finding that the Em-
ployer had engaged in objectionable conduct as to rule
31, which prohibits “[v]ending, soliciting, or collecting
contributions for any purpose unless authorized by man-
agement.” The Employer again filed exceptions and a
supporting brief, and the Union filed exceptions and an
answering brief.
The National Labor Relations Board has considered
the hearing officer’s report and supplemental report, the
record, the exceptions, and the parties’ briefs, and has
decided to adopt the hearing officer’s reports only to the
extent explained below.
I. THE HEARING OFFICER’S SUPPLEMENTAL FINDINGS
In her supplemental report, the hearing officer found
that one employee was hired and given the Employer’s

1 The hearing officer did not pass on three other rules in the Em-
ployer’s policy manual that the Union contended were unlawful, and no
exceptions were filed as to the hearing officer’s treatment of those other
rules.
2 Member Liebman, while joining the decision to remand, stated that
the evidence from the original record was sufficient to decide the case.
The Union filed a motion for reconsideration of the decision to re-
mand, which the Board denied on February 2, 2004.
policy manual, containing rule 31, during the critical
period; that a second new employee received the manual
3 days before the Union’s petition was filed; and that a
third new employee received it less than 6 months before
the petition’s filing. Each new employee is given a copy
of the manual and is required, upon receipt, to sign a
written acknowledgement of responsibility for reading
and abiding by its contents. The hearing officer also
found, based on the evidence in the record, that the Em-
ployer expects all its employees to “adhere to all the
rules and policies contained within [the manual]
throughout their employment.”
From these fact findings, the hearing officer found that
“the overbroad no-solicitation [rule] at issue was indeed
fresh in the minds of at least three employees close in
time to the date of the election.” Given the closeness of
the election and the small size of the unit, the hearing
officer concluded that rule 31 was disseminated to those
three employees “in such close proximity to the election
[that it] reasonably could have affected the results.” On
these grounds, the hearing officer again recommended
that the election be set aside. For the reasons that follow,
we disagree.
II. ANALYSIS
In remanding the case for the taking of additional evi-
dence, the Board found that the hearing officer’s initial
finding that the no-solicitation rule was “widely dissemi-
nated throughout the entire bargaining unit” was not sup-
ported by the record. The Board found that “[a]lthough
each employee apparently received a copy of the manual
at the time of hire, and was required to sign an acknowl-
edgment of having received it at that time, it is not clear
that employees’ attention was ever called to the no-
solicitation rule, or even to the manual as a whole, at any
time after they were hired. . . . In short, the hearing offi-
cer, in considering whether the rules in question were
maintained during the pre-election period, did not fully
address the extent to which the Employer’s policy man-
ual was disseminated.”
The evidence shows that the rule was not adopted in
response to the Union’s organizing campaign, that it was
part of a 36-page handbook, and that only one employee
received the handbook during the critical period. There
is no evidence that the Employer called employees’ at-
tention to the rule, including, significantly we think, the
one employee who received the handbook during the
critical period. Nor is there any evidence that the Em-
ployer enforced the rule or that any employee was in fact
deterred by the rule from engaging in Section 7 activity.
It is well settled that “[r]epresentation elections are not
lightly set aside.” NLRB v. Hood Furniture Mfg. Co.,
941 F.2d 325, 328 (5th Cir. 1991) (internal citation omit-
DELTA BRANDS, INC. 253
ted). Thus, “[t]here is a strong presumption that ballots
cast under specific NLRB procedural safeguards reflect
the true desires of the employees.” Id. Accordingly,
“the burden of proof on parties seeking to have a Board-
supervised election set aside is a heavy one.” Kux Mfg.
Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989) (internal
citation omitted). The objecting party must show, inter
alia, that the conduct in question affected employees in
the voting unit, Avante at Boca Raton, 323 NLRB 555,
560 (1997) (overruling employer’s objection where no
evidence that unit employees knew of alleged coercive
incident), see Antioch Rock & Ready Mix, 327 NLRB
1091, 1092 (1999), and had a reasonable tendency to
affect the outcome of the election. Id.
That burden of proof has not been met here. The rule
at issue was contained in a policy manual which was 36
pages long and which contained a large number of work-
place rules and requirements in addition to the no-
solicitation rule, which was relatively brief. It is also
clear from the record that the rule was not enforced. The
Employer had an established practice of permitting so-
licitations in the workplace. The Employer’s witnesses
testified, without contradiction, that solicitations for Girl
Scout cookies, Christmas gifts, sports teams, and school
fundraisers had previously been permitted.3 In these
circumstances, we do not believe that the inclusion of the
no-solicitation rule in the Employer’s policy manual,
standing alone, is sufficient to establish that the outcome
of the election could have been affected by the existence
of rule 31. Contrary to our dissenting colleague’s claim,
our decision is not a departure from established Board
law. Our colleague cites Board cases which hold that it
is “axiomatic that merely maintaining an overly broad
rule violates the Act.” Even accepting that premise, it is
not “axiomatic” that such conduct warrants setting aside
an election. For example, if a union lost an election 100–
0, and the rule was not enforced, adverted to, or given to
any employee during the critical period, we doubt that it
would be “axiomatic” that the election should be set
aside. Rather, as with all elections, the Board looks to all
of the facts and circumstances to determine whether the
atmosphere was so tainted as to warrant the setting aside
of the election. In the instant case, we have the mere
presence of an overbroad rule in a much larger docu-
ment, 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. In short,

3 There is no allegation that the Employer permitted these activities
and prohibited Sec. 7 activities. Thus, employees had no reason to
believe that Sec. 7 activities would be forbidden.
there is no showing that the mere existence of the rule
could have affected the results of the election.4
Our colleague presumes that employees are “affected”
by the rule. She indulges in this presumption because
there is no evidence of such an effect.5 We are unpre-
pared to so presume on the facts of this case. Of course,
the burden is on the objecting party to prove its objec-
tion, and without such a presumption, that burden is not
satisfied here.6
Our decision here is supported by the approach fol-
lowed in Safeway, Inc., 338 NLRB 525 (2002). There,
the Board considered whether an arguably overbroad
confidentiality rule could reasonably have affected the
outcome of a union-decertification election. The em-
ployees there were represented at all material times by
the union, which could have advised employees that the
rule could not lawfully be applied to protected activity,
and which never viewed the rule as infringing on em-
ployee rights. The Board declined to set aside the elec-
tion. Safeway, at 526. Here, too, in holding that mere
maintenance of the challenged rule is not a basis to set
aside the election, we properly look at all of the sur-
rounding circumstances.
As noted, Safeway stands for the proposition that the
mere maintenance of an arguably overbroad rule will not
be the basis for overturning an election where an incum-
bent union was in a position to advise employees of their
rights. Our colleague reads Safeway to stand for the ob-
verse proposition, i.e., that the election will be overturned
when there is no incumbent union. Of course, Safeway
does not so hold. Neither would we read the case to so
hold. A union engaged in an organizational campaign,
like an incumbent union, has both the interest and the
know-how to apprise employees of their statutory rights.
Accordingly, we will certify the election result.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Machinists District Lodge 290, Local
Lodge 1528 a/w International Association of Machinists,
AFL–CIO, and that it is not the exclusive representative
of these bargaining unit employees.

4 We do not hold that the objecting party must show that the rule is
“fresh in the minds of the employees.” We simply note that the ab-
sence of that “freshness” is a factor to be considered.
5 Our colleague also says that three employees were given the man-
ual “shortly before the election.” In fact, as noted above, only one
employee was given the manual during the critical period.
6 The evidence that is required is not “subjective” evidence. For ex-
ample, the Union could have adduced evidence that it told employees,
or employees told each other, that they should refrain from solicitation
because of the rule. There is no such evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD254
MEMBER LIEBMAN, dissenting.
Until today, under Board law, it was well settled that
an employer’s mere maintenance of an unlawful rule is
not only objectionable conduct, but also sufficient
grounds to set aside an election.1 This result follows
from the reasonable tendency of the rule to interfere with
employees’ free choice, by inhibiting them from engag-
ing in the conduct prohibited by the rule.2 As the Board
has explained, “the maintenance of the rule, not its date
of promulgation, enforcement, or the effects it had on
employees’ specific conduct, is what is significant.”3 We
have applied these established principles very recently.
See Pacific Beach Hotel, 342 NLRB 372, 373–374
(2004) (setting aside election, based on maintenance of
an overbroad handbook policy prohibiting solicitation on
company property).
The no-unauthorized-solicitation rule involved in this
case was facially unlawful. See Opryland Hotel, 323
NLRB 723, 728–729 (1997) (employer may not lawfully
require employees to seek prior approval for solicita-
tions). The majority does not dispute that the rule was
generally disseminated to employees, in a policy manual
to which employees were expected to adhere. On this
occasion, however, the majority holds the Union to addi-
tional requirements of proof. To set aside this election,
the Union must show: (1) that the policy manual contain-
ing the unlawful rule was actually given to multiple em-
ployees during the critical period; (2) that the Employer
enforced the rule or otherwise “called the attention” of
employees to it; or (3) that employees were, in fact, in-
fluenced in voting or deterred by the rule from engaging
in Section 7 activity. There is no basis in our case law
for such requirements. And, on the record here, it is
clear in any case that the rule reached enough employees,
recently enough, to make a potential difference in the
election results.
I.
Well-established legal principles govern this case.
With respect to an overbroad workplace rule, the only
question is whether maintenance of the rule could rea-
sonably have affected the election results. See, e.g., Pa-

1 See, e.g., Freund Baking Co., 336 NLRB 847 (2001) (setting aside
election based on handbook rule prohibiting disclosure of confidential
information, including terms and conditions of employment).
2 Id., citing Farah Mfg., 187 NLRB 601, 602 (1970). See also IRIS
U.S.A., Inc., 336 NLRB 1013 (2001), citing Mervyn’s, 240 NLRB 54,
61 fn. 16 (1979).
3 Freund Baking, id. fn. 5. The same approach is followed in unfair
labor practice cases. See, e.g., Cardinal Home Products, Inc., 338
NLRB 1004 (2003) (setting aside election in consolidated unfair labor
practice and representation case).
cific Beach Hotel, id. at 3.4 As with respect to objection-
able conduct in general,5 this is an objective test. “The
mere maintenance of an overbroad rule can affect the
election results because employees could reasonably
construe the provision as a directive from their employer
that they refrain from engaging in permissible Section 7
activity.” Pacific Beach Hotel, ibid. A union is not re-
quired to prove that the rule was enforced or that it actu-
ally had an effect on employees. E.g., Freund Baking,
id. at 847 fn. 5. Rather, where an objectionable rule is
contained in an employee handbook, employees who
received the handbook are presumed to be aware of the
rule and to have been affected by it. As a result, the elec-
tion must be set aside.6
In the face of this authority, the majority insists that its
decision is “not a departure from established Board law.”
I disagree. Here, the majority reallocates the burden of
proof to the objecting party to show more than that the
rule was maintained.7
No prior decision of the Board has ever required such
a showing.8 The majority relies on only a single case
involving an employer rule, Safeway, supra, in which a
panel majority refused to set aside a decertification elec-
tion, concluding that the employees would not reasona-
bly have been affected by the rule at issue, because of the
incumbent union’s mitigating role.9 My dissent in that
case explained, the holding in Safeway was at odds with

4 Where the rule has also been found to be an unfair labor practice,
the test is whether it is “virtually impossible to conclude” that mainte-
nance of the rule could have affected the election results. Safeway,
Inc., 338 NLRB 525, 526 fn. 3 (2002), citing Clark Equipment Co., 278
NLRB 498, 505 (1986).
5 E.g., Cambridge Tool & Mfg., 316 NLRB 716, 716 (1995); Hop-
kins Nursing Care Center, 309 NLRB 958 fn. 4 (1992).
6 See Pacific Beach Hotel, id. (handbook given to all employees
upon hire; “no evidence that the employees were ever told that they
could ignore the policy”); Freund Baking, supra at fn. 5 (each em-
ployee received handbook and was required to acknowledge that hand-
book was read and understood); IRIS U.S.A., supra at 1015 (handbook
distributed to all employees; new hires required to sign acknowledg-
ment). See also St. Joseph’s Hospital, 262 NLRB 1385 (1982) (setting
aside election based on overly broad no-distribution/no-solicitation rule
in handbook and in policy manual).
7 This burden allocation is also diametrically opposed to the burden
imposed where the objectionable rule is also found to violate Sec.
8(a)(1): i.e., that the employer must show that it is virtually impossible
to conclude that the misconduct could have affected the election result.
Safeway, id. at fn. 3; Clark Equipment, id. at 505.
8 The majority asserts that is not requiring the Union to show that the
rule was (as the hearing officer found) “fresh in the minds of the em-
ployees,” but is only finding the “absence of such freshness” to be a
“factor to be considered.” It seems clear, however, that the majority
would refuse to overturn any election where an objectionable rule was
not affirmatively shown to be “fresh” in employees’ minds.
9 The Safeway majority itself described the incumbent union’s pres-
ence as “a material fact in [its] evaluation of the likely impact of the
confidentiality rule on the election results.” Id.
DELTA BRANDS, INC. 255
the precedent I cite here. And, because no incumbent
union was present in this case to inform employees of
their rights, the majority extends Safeway’s invalid prem-
ise even further.
The majority’s reliance on decisions that involve ob-
jectionable conduct other than the maintenance of unlaw-
ful rules is also misplaced.10 An employer rule is cate-
gorically different from coercive action taken on a par-
ticular occasion against particular employees. Obvi-
ously, to justify setting aside an election, the specific
coercive action (e.g., a supervisor’s threat) must be
shown to have been disseminated to other employees.
An unlawful handbook rule, however, represents an on-
going term and condition of employment, applicable to
all employees and presumably known to them. On the
basis of this distinction, the Board has always correctly
presumed—at least in the absence of evidence to the con-
trary—that all employees who are subject to the rule are
reasonably likely to be affected by it. Contrary to the
majority, no “indulgence” in speculation is required to
justify this presumption.
II.
Applying the Board’s well-established principles to the
facts here should compel the Board to set aside the elec-
tion.
The unlawful rule at issue was included in the Em-
ployer’s policy manual for employees during the critical
period. The rule defined “vending, soliciting, or collect-
ing contributions for any purpose unless authorized by
management” (emphasis added) as “prohibited conduct”
that “will not be tolerated by the Company.” The major-
ity does not dispute that the policy manual was generally
distributed to employees. That is clearly sufficient to
invalidate the election result, under controlling Board
law.
Even if more evidence of dissemination were required,
it is also undisputed that at least three newly hired em-
ployees were given the Employer’s policy manual
shortly before the election. All three employees were
required to sign written acknowledgments of receipt. At
least two of them—a sufficient number to change the
election result—were required by their written acknowl-
edgments to “read,” “familiarize myself,” and “under-
stand” the manual’s contents during the critical period
(i.e., between the filing of the representation petition and
the election), and to “abide by” all the rules set out

10 Antioch Rock & Ready Mix, 327 NLRB 1091, 1092–1093 (1999)
(threats); Avante at Boca Raton, 323 NLRB 555, 560 (1997) (threats).
Significantly, however, even in such cases, where dissemination is
shown, the Board conclusively presumes that the election was ad-
versely affected.
therein.11 In the light of this evidence, the majority’s
characterization of the rule as “buried in the handbook”
is inaccurate, and it is illogical not to infer that these two
employees, at a minimum, were made aware of the
unlawful rule.12
III.
Finally, even applying the majority’s erroneous re-
quirements, the only reasonable inference in view of the
evidence is not only that the unlawful rule was dissemi-
nated to the unit through the manual, but also that em-
ployees’ “attention” was called to the unlawful rule with
coercive impact.
The hearing officer found, based on the testimony of
the Employer’s own witnesses, that the Employer ex-
pects all employees to “adhere to all the rules and poli-
cies contained within [the manual].” In this connection,
as noted above, and as in Freund Baking, supra, each of
the three employees who were given the policy manual
shortly before the election was required to sign a written
receipt mandating that he read and “familiarize” himself
with the manual’s contents, in two cases during the criti-
cal period. The Employer, in short, did everything prac-
tically necessary to publicize the unlawful rule to its em-
ployees, short of reading it aloud to them.
In finding no evidence that employees’ “attention was
called” to the rule, the majority appears to presume that
employees will not read their employer’s policy man-
ual—notwithstanding each employee’s written promise
to do so and the manual’s explicit warning of discharge
for noncompliance. The majority also appears to pre-
sume that employees will not become aware of a particu-
lar rule that is “merely present” in a “much larger” policy
manual (36 pages here) unless the rule is explicitly cited
to them. Surely we should at least presume that employ-
ees are aware of formal rules that their employer intends
to communicate to them and that could affect their ten-
ure. Indeed, in California, where the Employer is lo-
cated, policy manuals are frequently given the force of
contracts that create rights and obligations enforceable in
court.13 To operate on the presumption that employees

11 One of these employees was hired and received the manual during
the critical period. The other, having received and signed for the man-
ual three days before the critical period began, was effectively required
to review it over an ensuing period of days that clearly overlapped the
critical period. It is the maintenance of the rule during the critical
period that is relevant, not the date on which any employee was given
the handbook. Freund Baking, supra.
12 It is beside the point that, as the majority observes, “there is no
evidence that any employee was in fact deterred, by the rule, from
engaging in Sec. 7 activity.” As noted above, employees’ subjective
reactions to objectionable conduct are irrelevant.
13 See Guz v. Bechtel National, Inc., 100 Cal.Rptr.2d 352, 366–371
(2000); Asmus v. Pacific Bell, 96 Cal.Rptr.2d 179, 183 (2000); Scott v.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD256
nevertheless routinely ignore the rules imposed in such
critical documents flies in the face of that reality.14
The majority also maintains that the Employer had an
established practice of permitting worksite solicitations,
which negated its written rule to the contrary. This find-
ing is entirely unsupported. The rule, by its own terms,
prohibited all solicitations “not authorized by manage-
ment.” Even if the Employer had previously permitted
nonunion solicitations without preauthorization, the
Board could not presume that the Employer would have
been equally tolerant of union solicitation, and that dis-
parate enforcement would not have occurred. Nor could
the Board presume, without supporting evidence, that the
two newly hired employees who were required to read
and comply with the policy manual shortly before the
election were made aware of any unwritten exception to
the unlawful rule. It is therefore not the case, as the ma-

Pacific Gas & Electric Co., 46 Cal.Rptr.2d 427, 432–433 (1995).
“When an employer promulgates formal personnel policies and proce-
dures in handbooks, manuals, and memoranda disseminated to employ-
ees, a strong inference may arise that the employer intended workers to
rely on these policies as terms and conditions of their employment, and
that employees did reasonably so rely.” Guz, 100 Cal.Rptr.2d at 371.
14 I doubt that the majority would be inclined to bar an employer
from disciplining an employee for an infraction listed in a policy man-
ual, in the absence of evidence either that the employee actually read
the manual or that the employee’s attention was specifically “called” to
the pertinent rule. As for the length of the policy manual, the majority
offers no hint as to exactly how “large” the policy manual must be
before it will presumptively remain unread by employees.
jority states, that “employees had no reason to believe
that Section 7 activities would be forbidden.” Employ-
ees rather had every reason to believe that Section 7 so-
licitation not preapproved by management would be pun-
ishable.15
The majority’s approach, in short, is internally incon-
sistent. On one hand, the majority refuses to infer that
employees were aware of the written, publicized rule,
despite good reason to do so. On the other hand, the ma-
jority eagerly presumes that all employees were aware of
unwritten exceptions to the rule, without any evidentiary
support.
IV.
At bottom, the majority’s approach to this case seeks a
way around controlling precedent. It has not found
one—and, if it had, the majority would still run up
against the record evidence here. Because the Em-
ployer’s rule was unlawful and because the maintenance
of that rule reasonably tended to coerce employees, I
would set the election aside. I would reach the same re-
sult, on the record here, even applying the new and dubi-
ous requirements imposed by the majority. Accordingly,
I dissent.

15 Significantly in this context, all three of the other rules alleged by
the Union to be objectionable restricted activity only “on Company
property” or “during working time.”