Last week, Christmas came early for labor unions with the National Labor Relations Board (NLRB) delivering some significant presents. First, the NLRB issued a decision that allows employees to use company e-mail to engage in union organizing, notwithstanding an employer’s prohibition not to use such resources for non-business purposes. Second, the NLRB issued rules that will allow for quicker elections and grant unions access to more employee information. Finally, the United States Senate confirmed Lauren McFerran (“McFerran”) to the NLRB. Each of these “presents” will make it easier for unions to organize and obtain favorable decisions from the NLRB.
In Purple Communications, Inc., 361 NLRB No. 26 (2014), in a 3-2 decision, the NLRB found a company policy that prohibited the use of the company’s e-mail system for non work-related messages was unlawful. Specifically, the NLRB ruled that employees can use an employer’s e-mail system, on non-work time, for union organizing or to otherwise engage in protected concerted activity, such as complaining about wages and benefits to co-workers. Significantly, the NLRB noted that it:
. . . will presume that employees who have rightful access to their employer’s e-mail system in the course of their work have a right to the use the e-mail system to engage in Section 7 protected communications on nonworking times. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees rights.
In issuing its decision, the NLRB noted the ruling only applies to employees who have already been granted access to the employer’s e-mail system in the course of their work and does not require employers to provide such access. It also noted that it would be a rare case where special circumstances supported a total ban on non-work email use by employees. The NLRB did not address e-mail access by non-employees, such as union organizers, or the use of any other electronic communications systems provided by an employer. Finally, the NLRB also noted that its Purple Communications decision will be applied retroactively.
The decision will raise a significant number of issues for employers. For instance, while the NLRB noted that its decision did not prohibit an employer from monitoring employee computers and e-mail for legitimate business purposes, such as measuring productivity and preventing the use of e-mail for unlawful purposes, it made it clear that claims of unlawful surveillance of protected conduct could be raised. For instance, if an employer increases its monitoring during an organizing campaign and/or focuses its monitoring efforts on certain employees engaged in protected conduct, the employer would be deemed to engage in unlawful surveillance.
What It Means To Employers: This decision is likely to be appealed, but it will be some time before the courts rule on this case. In the meantime, employers should review their electronic communications policies to determine whether they are prohibiting all non-work use of company e-mail. In such a case, the policy will likely be found to violate the NLRA. An employer with non-compliant policies can be found guilty of an unfair labor practice for (1) having the policy; and/or (2) disciplining/terminating employees who violate the policy.
On December 12, 2014, the NLRB also issued its “Ambush Election” rules which will dramatically shorten the time between the filing of a petition for an election and the union election from roughly 42 days to between 10 to 24 days. While unions can spend six months to a year (or longer) attempting to organize workers, employers will have only a few weeks to address the potential consequences of unionization if the organizing efforts take place in secret. In such a case, workers will be forced to make a decision impacting their workplace without knowing all of the facts relating to unionization.
The new rule imposes a number of additional burdens on employers, including but not limited to:
• Requiring employers to provide unions with additional employee contact information (personal home and cellular telephone number and email addresses, work locations, shifts, and classifications) in voter lists that the employer gives to the NLRB within two days of an election being directed, which in turn is then given to the union.
• Eliminating an employer’s right to challenge an employee’s eligibility to vote prior to the election being held.
• Requiring employers to identify all objections and disputes regarding the election in its “Statement of Position,” filed one day prior to the pre-election hearing, and any objections or issues not raised will be waived.
• Providing the NLRB greater discretion to dismiss an employer’s post-election objections.
Given these controversial rules, a number of trade associations have announced their intent to file a lawsuit against the NLRB, challenging the ambush rules from a number of different aspects. Fortunately, since the ambush rules do not take effect until April 14, 2015, courts should have some opportunity to decide whether the rules are valid prior to their effective date.
What It Means To Employers: The amended rules will lead to quicker elections. This, in turn, means that employers will have significantly less time to educate their employees about the disadvantages of unionization as well as train their supervisors on how to lawfully respond to union organizing and tactics. Similarly, under these new rules, employers will have less of an opportunity to challenge the fairness of a union election. Given the constraints of the ambush rules, employers should begin to educate their supervisors on how they can legally respond to union organizing. Employers should also consider educating employees on the disadvantages of unionization --- before a campaign even commences.
Last week, in a party-line vote of 54-40, the United States Senate also confirmed Lauren McFerran (“McFerran”) for a three year term to replace Nancy Schiffler (D), whose term with the NLRB expired on December 16. If Schiffler had not been replaced, the NLRB’s pro-union agenda would have been stifled as it would have consisted of two Democrats and two Republicans heading into 2015 when the Republicans will control the Senate. As a former staffer for both Senators Ted Kennedy (D) and Tom Harkin (D), most believe McFerran will continue the NLRB’s pro-labor agenda.
What it Means to Employers: As a result of McFerran’s appointment, for the foreseeable future (i.e., August 27, 2016), the majority of the NLRB’s members will be considered friendly to the union causes. As a result, employers can continue to expect the NLRB to issue decisions designed to improve unions’ ability to organize workers and lead to more unfair labor practices being filed against employers.