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Legal Updates

NLRB Bolsters Union Organizing Through Email Ruling And “Quickie” Election Rules

The National Labor Relations Board (“NLRB” or the “Board”) has handed unions powerful new weapons for their organizing arsenals: (1) a ruling that gives employees the presumptive right to use their employers’ email systems for union organizing and related activity, and (2) the adoption of “quickie” election rules, which give employers little time to campaign against union representation after an election has been scheduled.

These developments tilt the playing field in favor of unions like never before. Accordingly, employers should immediately implement appropriate policies, practices, and management training concerning use of their email systems, and develop campaign strategies and communications now – well in advance of any union organizing activity at their facilities.

Right To Use Employer Email Systems

In Purple Communications, Inc., 361 NLRB No. 126, the NLRB adopted the presumption that “employees who have rightful access to their employer’s email systems in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time.”

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” As such, the Board’s ruling creates a broad right to use employer email systems for union organizing, to discuss wages, hours, and other terms and conditions of employment, and to air grievances.

An employer may rebut the presumption that employees have a right to use its email system for such purposes “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” However, the Board gives no examples and notes that “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.”

Similarly, while employers may monitor employee emails for “legitimate management reasons,” the Board cautions that “[a]n employer that changes its monitoring practices in response to union or other protected, concerted activity, however, will violate the Act.”

The Board’s ruling overturns its 2007 decision in Register Guard, 351 NLRB 1110 (2007), enforced in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard, the Board ruled 3-2 along party lines that employers may restrict the nonbusiness use of their email systems because these systems are employer property. The Board now claims that Register Guard gave too much weight to employers’ property rights and too little weight to employees’ communication rights.

“Quickie” Election Rules

The day after issuing its email ruling, the Board adopted rules for expedited representation elections. These rules are known as the “quickie” election rules because they dramatically reduce the time between a union’s petition for an election and the election itself. Absent a successful court challenge, the rules will take effect April 14, 2015.

The following features of the new rules illustrate the difficulties they will pose for employers:

Posting Requirement. Upon receipt of a union’s representation petition, the NLRB will send the employer a Notice of Petition for Election, which must be posted in the workplace within two business days. This notice will provide information about employees’ rights to organize under federal law. Employers that use email to communicate with employees also must distribute the notice electronically. The Board’s prior rules contained no such posting or distribution requirement.

Pre-Election Hearing. If an employer wishes to challenge the appropriateness of an election petition, then a pre-election hearing will be scheduled for eight days after the petition is filed. Within seven days, the employer will be required to file a detailed Statement of Position raising all potential challenges. The employer will be deemed to have waived any challenge not raised in the Statement of Position. The prior rules did not require employers to promptly identify issues in dispute or be barred from raising them later.

Deferral Of Certain Challenges Until After The Election. Litigation over the inclusion of specific employees in the bargaining unit or their eligibility to vote will generally be deferred until after the election, as such issues could be mooted by the election results (e.g., if the union were to win by a large margin, then the disputed ballots might be insufficient to change the result). Under the former rules, employers could insist on litigating voter eligibility and inclusion issues prior to the election.

Elimination Of Right To Submit Legal Briefs. At the conclusion of the pre-election hearing, the employer may not submit a written brief unless the Regional Director deems it “necessary.” Under the prior rules, the employer could file a written brief within seven days, with permissive extensions of fourteen days or more.

Elimination Of Automatic Stay Of Election. Representation elections will no longer be stayed for twenty-five to thirty days after the Regional Director rules on the issues presented at the pre-election hearing. Previously, elections were routinely stayed to allow the Board to consider any request for review of the Regional Director’s decision that might be filed.

New Voter List Requirements. Within two business days after an election is scheduled, the employer must provide a voter list to the union. The list must include not only the names and home addresses of all employees in the petitioned-for unit, but also their personal phone numbers and email addresses. The prior rules required employers to provide only names and home addresses, and gave employers seven days to do so.

Fast-Track Timeline. Under the new rules, elections could be scheduled for as soon as ten days after the election petition is filed. By contrast, the median time from petition to election over the past decade has been thirty-eight days, with most elections taking place within fifty-six days.

As this article was being written, federal lawsuits to enjoin the new rules were filed in the District of Columbia and Texas. The lawsuits allege that the new rules are unconstitutional and exceed the Board’s authority. However, unless and until a legal challenge prevails, employers should anticipate that the April 14, 2015, effective date will remain intact.

Recommendations

In light of these developments, employers should consider the following measures.

Regarding Email Usage

      • Review and revise policies concerning employee use of the company’s email system to ensure that they do not, on their face, restrict the rights afforded employees under the Board’s Purple Communications, Inc. ruling;
      • Train managers and human resources personnel on how to identify emails implicated by the Board’s ruling and what to do (and not do) next;
      • Ensure that the training covers the type of email content that the Board may deem “protected” under its ruling, as well as the line between permissible email monitoring and impermissible surveillance; and
      • Establish a chain of communication so that managers and human resources personnel know exactly how, when, and whom to notify when email issues arise, so that the company can immediately confer with labor counsel as to the most appropriate handling of the matter.

Regarding Union Organizing

      • Take stock of whether non-supervisory employees may have reason to explore unionizing – e.g., substandard wages or benefits, poor working conditions, or abrasive reporting relationships – and consider whether changes may be warranted (note, however, that it is generally unlawful to change, or to promise to change, wages, hours, and working conditions after organizing activity begins);
      • As part of this assessment, review compensation and benefits, including what is offered in the relevant market; conduct a wage-and-hour audit and rectify potential violations; and address any rifts or unresolved workplace complaints (as strained employee-management relations is a leading cause of successful union organizing);
      • Train managers and human resources personnel in how to lawfully respond to union organizing activity – and how to avoid unlawful knee-jerk reactions that may expose the company to liability under federal labor law; and
      • Prepare campaign strategies and communications now, as there will be little time to act after an election petition is filed.

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Please let us know if you have any questions about the NLRB’s email ruling and “quickie” election rules, or if you may need assistance in preparing for actual or potential union organizing at your facility.