National Labor Relations Board Update

12/31/2014 / Phyllis Karasov

The National Labor Relations Board (NLRB) recently published a decision affecting the right of employees to use an employer’s e-mail system to discuss wages, hours and working conditions, and issued a new rule accelerating the time period for an election when a labor union has filed a representation petition.
Employee Use of Employer E-mail System

The NLRB has issued a significant decision which holds that employees have the right to use their employer’s e-mail system for union organizing purposes. In Purple Communications, the NLRB held, by a three-to-two vote, that employees have the right during non-work time to use the employer’s e-mail system for communications regarding union organization efforts and to discuss employee wages, hours and working conditions.

The employer in the Purple Communications case had a policy which prohibited employees from using the employer’s electronic communications system for non-business purposes. This policy was consistent with NLRB doctrine under the Register Guard case, which allows an employer to prohibit employees from using the employer’s e-mail system for communications which would otherwise be protected by the National Labor Relations Act (NLRA) as long as the ban was not imposed discriminatorily. So, for example, if the employer disallowed other nonbusiness use of its e-mail communications system, it was permissible to prohibit otherwise protected non-work communications.

In the Purple Communications decision, the NLRB overruled the holding in Register Guard that held that employees do not have a statutory right under the NLRA to use an employer’s e-mail system for communications that are protected by Section 7 of the NLRA, as long as the employer’s prohibition of such use is not discriminatory. In the Purple Communications decision, the NLRB held that employees are allowed to use an employer’s e-mail system for union organizing efforts unless it can be shown that special circumstances make a ban of such communications necessary to maintain production or discipline. The NLRB did not explain what such special circumstances are other than to say that “it will be the rare case where special circumstances justify a total ban on non-work e-mail use by employees.”

The two dissenting members of the NLRB discussed a number of reasons why the majority decision is improper, including the view that the board’s new position violates the First Amendment and requires companies to host speech that they do not own or support.

It is expected that this decision will be appealed. Employers should be aware of the risks associated with their e-mail policies to the extent they prohibit personal use of the employer’s electronic communications system. Potential claims can arise when an employer  reviews employee e-mail messages (provided the employer’s written policy allows the employer to read and monitor employee e-mail messages) and discovers union organizing efforts. Employers need to be cautious in what they do with this information.
NLRB Rules on Representation Elections

As expected, the NLRB has issued the Final Rule concerning representation elections, substantially similar to the proposed rules published in February, 2014. The new rules take effect on April 14, 2015. These rules have been called “Ambush Rules” or “Quickie Rules” because they allow a union to ambush an employer and demand an election with little notice or preparation.

The significance of the Final Rule is the acceleration of the entire election process. Under the Final Rule, elections must take place as soon as possible. Employees must make the decision whether to vote for or against the union within a 21 to 24 day period. Under the current rules, the average time in which an election is conducted is 42 days from the filing of the petition; under the Final Rule an election could occur as soon as ten days from the filing of a petition by the union. The Final Rule provides that the regional director will normally set a pre-election hearing to begin eight days after the hearing notice is served. At the hearing, the parties will generally litigate only those issues that are necessary to determine whether it is appropriate to conduct an election. Litigation of eligibility and inclusion issues are deferred until after the election. The NLRB believes that many of these issues will be made moot by the election results.

Fundamental issues such as who is eligible to vote are decided after the election has been conducted. In addition, because the deadlines are now expedited, employers have less time in which to present their position in an organizing campaign.

The Final Rule requires employers to provide the union with personal contact information for its employees, including e-mail addresses and cell phone numbers in the employer’s possession. The Final Rule also allows the NLRB to accept electronic signatures to support the required 30% showing of interest required for an election to be held.

The new rules mean that employers who wish to remain non-union must be aggressive in creating an environment in which employees feel supported and do not see the need for a union.  Supervisors should be trained to recognize organizing activity and what they can and cannot say if they become aware of a union organizing effort. Positive relationships with employees and close monitoring of problem areas which could cause employees to contact a union are critical to avoid a union organizing campaign.