NLRB, Handbook Statement That Benefits Available to “Non-Union Employees” Unlawful

Under Lutheran Heritage (2004), the Board was supposed to view the totality of a corporate policy and not individual fragments of that policy. This decision tried to provide a framework for evaluating the language of employer policies. However, the Board overly-scrutinized all policies and often examined fragments of a policy without regard to the full context. Allegations regarding handbooks became something of a cottage industry as unions utilized this tool for leverage in labor disputes. Thankfully, the Trump Board discarded the Lutheran Heritage standard in late 2018.

Some recently issued NLRB decisions note that unions even withdrew handbook allegations in pending litigation to avoid getting decisions from the current NLRB finding the policies to be lawful. When the Presidency reverts to a Democrat, the make-up of the Board will also change, and the handbook-violation industry will ramp back up with a renewed fervor.

In the meantime, not all handbook violation cases have gone away. One such case is Constellation Brands, U.S. Operations, Inc., 367 NLRB No. 79 (January 31, 2019). In that, the language in an employer’s incentive plan which stated, “All non-union full time and regular part-time employees of the Company are eligible for the incentive plan.” There, the Administrative Law Judge held:

Board precedent is clear and unmistakable on this issue: employer rules, statements, provisions or plans that afford benefits to employees contingent on their non-representational status violate Section 8(a)(1) of the Act. . . .  Employers can avoid such coercive impression by simply using language that conveys the messages that wages and benefits of represented employees are ultimately subject to what the parties agree to in collective bargaining without the inference that they are automatically disqualified.

The Board affirmed the ALJ’s decision with Member Emanuel observing that the language at issue “conveyed the message that employees choosing union representation are automatically ineligible for the plan.”

Perhaps one way around this is to have two handbooks.

This case is a reminder that policy language discussing the applicability of benefits to “non-union” employees should be accompanied by a full explanation that employees represented by unions are subject to collective bargaining.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at