The NLRB Gives Organized Labor a New Year’s Resolution

January 20, 2015Articles The Legal Intelligencer

Reprinted with permission from the January 20 issue of The Legal Intelligencer. (c) 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

On Dec. 9, 2014, the National Labor Relations Board, in a decision referred to as Purple Communications, rejected a prior ruling and held that workers may use an employer's email system for nonbusiness purposes during nonwork time. Specifically, the NLRB declared that employees have the right to use an employer's email system to engage in activities protected by Section 7 of the National Labor Relations Act, which protects employee discussions about terms and conditions of employment, including union organizing.

This decision was one of several pro-labor actions taken by the NLRB in the second half of December. Perhaps the other, more notable action is the passage of the new "Quickie Election Rules," which become effective April 15. It was not a coincidence. As reported by The Wall Street Journal on Dec. 12, 2014, in response to the Purple Communications decision: "This round of NLRB mischief happened, not so coincidentally, as a quickie vote after the Senate confirmed Lauren McFerran to the NLRB on Monday and before Nancy Schiffer's term expires next week. While both Ms. McFerran and Ms. Schiffer are part of the Obama administration's string of pro-labor appointees, the board evaded congressional scrutiny of their decisions by waiting to issue them until Ms. McFerran was confirmed, leaving the issue out of her confirmation hearing."

In Purple Communications, the challenged policy prohibited "activities on behalf of organizations or persons with no professional or business affiliation" with the company, as well as sending "uninvited emails of a personal nature." Although the NLRB said that if an employer can point to "special circumstances" to justify a ban on nonwork use of email systems, the NLRB said it would be a rare case in which they would find those circumstances to exist. This is one of the first decisions in which the NLRB allowed employees the right to use employer property for their convenience and, in particular, to exercise their rights under Section 7. This follows other rulings involving protections for statements in social media and discussions of otherwise confidential information.

Purple Communications will apply to non-unionized workplaces. The decision will require employers to allow employees to use company email systems for other activities protected under the NLRA, such as union organizing, strike planning and other collective employee actions. The decision may also severely restrict employers from monitoring emails, as employers are not permitted to engage in the surveillance of individuals who may be involved in union organizing activities. The decision will also impact an employer's ability to discipline employees for obnoxious, disparaging and insubordinate statements in emails sent on the company server.

As for the quickie election rules, organized labor and the NLRB have never liked the perceived "better opportunity" of an employer to educate employees during the 35 days or so after the election petition is filed, the campaign goes public and the election is held. This is why most unions do not even ask for an election until they have cards from 70 percent of the unit. Maybe if the NLRB also changed the rules to allow employers to do what unions and organizers can do without sanction from the NLRB—interrogate, conduct surveillance, intimidate and make promises they have no way of keeping—expedited elections contemplated by the new rule" wouldn't be so bad.

It is anticipated that the new rules will accelerate elections so that they can be scheduled as quickly as 14 to 21 days after the filing of the election petition, instead of the present 38 days. The NLRB will achieve this result through modifications.

Issues relating to whether a small number of voters are eligible to vote or should be included in the unit will typically be deferred until after an election, and then will be addressed only if they affect the election results.

Nonpetitioning parties, typically employers, will need to identify the issues they wish to raise in brief submitted the day before the hearing. Issues not raised in the brief are waived. For the first time, an employer will be required to provide the petitioning union not just eligible voters' home addresses, as is required presently, but also their telephone numbers and email addresses. In addition, employers also will be required to post and distribute to employees an NLRB notice informing employees that an election petition has been filed and, accordingly, that there is the potential for an election to follow. The main consequence of the new rules is that employers will be deprived of as much as two to three weeks to educate their employees as to the potential negative effects of an organized workforce.

The takeaway from these decisions:

• Employers should review policies addressing the solicitation of electronic communication systems, and practices and policies regarding their use and monitoring.

• Employers should eliminate language resembling that in the cited policy and be careful about categorical limitations on employees' use of the company email system. It is impractical to suggest that employers restrict access to email by employees, although if email is not a necessary part of an employee's duties, you may want to restrict such employees from use of email.

• Employers also should ensure that they are careful to conduct business in a matter that discourages any interest in unionization by employees. Now more than ever, it is important for employers to evaluate their susceptibility to union organizing and to be proactive in eliminating any weaknesses so that they do not find themselves trying to convince employees not to vote for a union shortly after a union election petition is filed.

This dawn of a new year brings a new work world, one in which employers must prepare for a shift in employees' use of work email during nonwork hours, given the connection between employees' use of those email systems to conduct union organizing.

Reprinted with permission from the January 20 issue of The Legal Intelligencer. (c) 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.