Requiring 401(k) Contributions for All Non-Union Employees is an Unlawful Promise of Benefits During a Decertification Campaign because the Handbook said the Company Reserved the Right to Modify or Terminate Retirement Plans

In 1999, TCI Cablevision of Washington held that an employer did not interfere with an election by accurately telling employees the company would be required under its existing benefit plans to automatically cover employees if they decertified a union. Following this precedent, UniFirst recently told its employees that they would receive 401(k) benefits and a profit-sharing plan if they decertified the United Steelworkers union as their bargaining representative. UniFirst was merely reciting its handbook when relaying that information to its employees.

However, the current NLRB – as it’s prone to do – picked apart the Company’s handbook and zeroed in on perhaps the most common clause appearing in every handbook: the company reserves the right to modify the contents of the handbook. Since UniForce reserved the right to modify (or terminate) the 401(k) provision in the handbook, the benefits were not automatic. So telling union employees that if they get rid of the union they will have certain benefits when the company is free to change those benefits is unlawful.

The Board has systematically eroded company handbooks to the point where many employers are unable to logically rely on the policies and procedures that have been in place, followed, and accepted as lawful for decades. Competent labor counsel should be consulted before companies involve their handbooks in any dealings with labor unions.

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