Christmas came early for big labor. On December 11, a sharply-divided NLRB reversed prior precedent and held that employees now have a presumptive legal right to use their employer's email system to engage in union organizing and other protected activity.
The following day, a similarly divided NLRB issued long awaited new election rules which will make it easier for unions to win NLRB sponsored representation elections.
These two actions by the NLRB will have dramatic effects on all employers - those with and without unions.
Email Ruling
In a case called Purple Communications, the NLRB reversed a 2007 ruling which allowed companies to prohibit employees from using company email systems for non-company business like union organizing. Under its Purple Communications decision, the NLRB has turned the prior law on its head by providing that employees now have a federally protected legal right to use their company's email system to engage in union organizing and other protected concerted activity such as criticizing management practices and personnel or circulating union organizing materials. The NLRB justified its change of position because email has become such a common form of workplace communications.
What This Means For You
The ruling essentially means that where an employer permits employees access to the company email system, it cannot prohibit employees from using the company's email system during their non-working time to exchange communications about wages, hours and working conditions, even if the object of the communication is to foment discontent and form a union. While the ruling preserves the right of an employer to assert that there are "special circumstances" in a particular work setting where such behavior would be unduly disruptive (i.e., the ban is necessary to maintain production or discipline), the NLRB majority was quick to point out that it would be a rare case indeed where an employer will be able to satisfy this burden.
The NLRB's email ruling creates a high degree of uncertainty as to whether and when any types of restrictions can now be justified. Since most current policies will be illegal under the new rules, employers should immediately review all email and electronic communication use policies that were drafted under the old rule. In doing so, employers will be forced to make difficult decisions as to what policies to adjust and revise in light of this stunning reversal of longstanding law. Additionally, employers will want to reevaluate which employees are granted initial access to the company email and other electronic communication systems.
NLRB Again Approves "Quickie" Ambush Union Representation Election Procedures
In our February 12, 2014 issue of Compliance Matters
(http://www.brgslaw.com/compliance_matters/2014_1_Feb/index.html), we alerted readers to the Obama Labor Board's consideration of a new set of union election procedures which will make it harder for employers to win a union representation election. Last week, the NLRB issued its long-awaited "Final Rule to Modernize Representation-Case Procedures" which approves the proposed shortened timeframe for conducting secret ballot union representation elections. The new rules will take effect on April 14, 2015.
The new rules include the following changes and consequences employers need to be aware of:
- Much Quicker Elections. Elections will now be set "for the earliest date practicable," which will allow for elections to be held in as few as 10-21 days after the filing of a NLRB election petition vs. the current 38-45 day time frame. This change will give union organizers a huge advantage because unions have months or even years to garner support before filing the NLRB election petition, whereas employers will have only approximately 1/3 of the already limited time available to respond to the union's organizing campaign.
- New NLRB Hearing Procedures. The current procedure of ironing out all of the election details before the voting takes place has been replaced by a process that gives the local regional office of the NLRB almost carte blanch to dictate whether any legal issues and challenges will be permitted. Additionally, for the first time, the employer will need to furnish the union and the NLRB with a complete list of the potential voters' names, work locations, shifts and job classifications upon receipt of the election request, even if the union subsequently withdraws the request for the election. If the employer contends that the proposed voting group should be different than the one selected by the union, the employer must separately list the names, work locations, shifts and job classifications of all individuals that it contends must be added to or excluded from the proposed voting group.
- More Voter Information to be Furnished to the Union. Once an election is scheduled, the employer has just 2 days to furnish a complete voter list (the employees' names, home addresses, available personal email addresses, home and cell phone numbers, work locations, shifts and job classifications). The old rule was 7 days.
- More Authority for the Regional Directors. The Regional Director will be given broad authority to decide whether to conduct a pre-election hearing and appeals of adverse rulings to the NLRB in Washington D.C. are now entirely discretionary.
What This Means For You
Business leaders uniformly believe the NLRB has unfairly tipped the delicate labor relations balance in favor of organized labor. To be sure, the new rules leave employers with far less time to figure out a game plan for how it will address the myriad of issues and strategic decisions that must be made in a union organizing campaign. There are many decisions that must be made in a very compressed time period that could seriously affect the outcome of any union election. Employers hoping to win an NLRB election should consider a number of strategies before the onset of union organizing. We recommend that employers meet with counsel to devise a going forward game plan to address these significant matters before the union election time clock starts ticking.
While litigation to challenge the implementation of the new rules is likely, employers must be prepared as unions will seek to take advantage of these rules as soon as possible.
These two developments serve as yet another reminder that the Obama Labor Board is willing to depart from or overturn well-established precedent in ways that have serious and dramatic impact on employers.
In coming months we will be reporting in greater detail about these changes. In the meantime, if you have any questions about the matters discussed in this issue of Compliance Matters, you may contact any member of the Firm. We are reachable at 818-508-3700 or on the web at www.brgslaw.com.
Everyone at the Firm thanks you for entrusting BRGS to be your counsel of choice. We wish you all a happy, healthy and prosperous 2015.
