January 13, 2015

 

In a one-two punch to employers, the National Labor Relations Board (NLRB) has made it dramatically easier for unions to organize an employer's workforce. First, it reversed precedent and gave employees the presumptive right to use their employer's email system to engage in communications regarding working conditions, including union organizing. Immediately thereafter, the NLRB adopted so-called "quickie election" rules that severely reduce the timeline for holding an election following the filing of a petition by a union seeking representation rights.  Together, these developments create much more favorable conditions for unions to organize employers and demand collective bargaining.    

NLRB Opens Employer Email Systems for Union Organizing

In a reversal of precedent, the NLRB, by a 3-2 vote, ruled that employees have the presumptive right to use their employer's email system during nonworking time for communications with respect to working conditions and union-related issues. The NLRB reasoned that the property rights of employers to their email systems presumptively must give way to the rights of employees to use those systems to communicate regarding wages, hours and working conditions, including union organizing. 

According to the NLRB, an employer could rebut that presumption by demonstrating that special circumstances necessary to maintaining production or discipline justify restricting such employee access, although it stated that these exceptions would be “rare.”

The NLRB also distinguished its most recent ruling from a long line of cases in which it had found that employees did not have a right to use employer property to communicate about concerted activity protected by the National Labor Relations Act. Those prior cases involved property such as bulletin boards, telephones, fax and copy machines, and public address systems. The NLRB reasoned that “email systems function as an ongoing and interactive means of employee communication in a way that other, older types of equipment clearly cannot.” 

Furthermore, and in any event, the NLRB did not rule out revisiting whether employee rights to communicate using employer telephone and portable devices, as well as computer equipment, would also presumptively predominate over company property rights to those devices and equipment.   

Employers Can Still Control and Monitor Email Usage, but Run Risks  

The NLRB’s decision recognizes the right of employers to confine such email usage to non-working time and to monitor their email systems for legitimate management reasons, such as to ensure productivity and to prevent email use for purposes of harassment. It also acknowledges that employees may have no expectation of privacy when using their employer’s email system.  

But this is small comfort to employers.  As a practical matter, it is difficult to tell whether an employee is using the email system during “working time,” especially given that employees typically have short down-time periods throughout the course of the day and it takes little time to send or read an email. 

Also, how can an employer determine when its monitoring of its email system becomes unlawful surveillance? The NLRB says that the employer should not increase its monitoring during a union organizing campaign, but it would be very difficult for an employer to resist doing so if such monitoring provides intelligence to help it counteract the union’s campaign. 

While the decision does not give unions the right to use employer email systems, it is easy to envision how unions could avoid this distinction by simply having a supporter forward the union’s emails and propaganda to the other employees.

In the meantime, employers should consider taking the following steps:

  • Review existing email policies and revise them accordingly to conform to the NLRB’s decision. Such policies may continue to state that email system use for non-work-related purposes should be confined to non-working time. If practical, employers should consider limiting email access, such as not giving every employee access to the whole company’s email directory or to templates for mass mailings.  

  • Educate/train managers and supervisors on the new NLRB standard to avoid liability for unfair labor practice charges.

NLRB Revamps Rules for Union Elections by Speeding Up Process

The NLRB dropped the other shoe by finalizing rules that will change the union election process in order to make it quicker and easier for unions to organize. These rules will take effect on April 14, 2015, unless a challenge to the rules and an intervening court order or other development materializes.

For years, unions have been seeking to reverse their steady decline in the workplace and poor results in elections by changing the laws and rules on obtaining representation rights. First, they lobbied to do away with elections altogether in favor of entitlement to recognition based on union authorization cards. This undertaking failed when the necessary support in Congress to change the National Labor Relations Act did not materialize. 

The NLRB then stepped in, introducing proposed changes to the rules by which it oversees elections to make them faster and remove obstacles that have stymied unions in the past. But this effort initially was blocked in federal court when it was found the NLRB did not have the necessary quorum of members. That obstacle has since been removed, as the NLRB is now fully constituted and a majority of the members, by a 3-2 vote, has voted to issue final rules modifying election procedures that have been in place for decades.   

The highlights of these changes are as follows:

  • Filing of an election petition may be done electronically, and the union serves the petition on the employer. The employer must then post and distribute an NLRB notice providing details about the petition, the election process, and the activities that are “protected” by the NLRB. Presently, the NLRB serves the petition on the employer, and posting of a less-detailed notice is voluntary.  

  • Pre-election hearings will be held eight days after the filing of the election petition, and will decide only those issues necessary to determine whether an election should be conducted. The NLRB will determine issues such as voter eligibility and unit scope after the election, instead of before, if at all. Presently, issues such as whether the unit chosen by the union is the appropriate election unit are resolved before an election can be conducted. Unions generally prefer smaller units that are easier to organize, while employers oppose these as not suitable due to the nature of their operations. Lately, the NLRB has been siding with the unions on the size of the units, approving so-called “micro-units.” In any event, this issue will now be put off until after the election in the unit chosen by the union.

  • Prior to the pre-election hearing, the employer must submit a position statement listing the names, work locations, shifts and job classifications of all employees and identifying all disputed issues. If the employer disputes the proposed election unit, it must separately list the same information for those it contends should be added or excluded from the proposed unit. Any argument not raised will be considered waived. Presently, none of this is required. The requirement that any argument not raised by the employer is waived imposes a rigid “pleading” requirement that did not exist previously with respect to representation proceedings.   

  • The hearing officer conducting the pre-election proceedings will have authority to significantly limit evidence and to close the hearing and order the election even if the eligibility of many votes is still in doubt. Post-hearing briefs will be a matter of the hearing officer’s discretion rather than a matter of right. Review of the hearing officer’s rulings is deferred until after the election.

  • Elections will be set by the hearing officer “for the earliest date practicable.” This means that elections will be conducted within a window of just 10 to 21 days after the filing of the election petition. This is a far cry from the present median time of 38 days from the filing of the petition.  

The Upshot: Employers Will Need to React More Quickly and Be More Proactive to Effectively Counter Union Organizing Campaigns    

With the dramatically shortened time period between the filing of a petition and the holding of an election, employers will have far less time to communicate to employees the negative implications of union representation and the collective bargaining process. When an employer receives notice of a union petition for an election, it will have to react more quickly to engage counsel or special advisors, learn the issues driving the election, and plan an election campaign to counteract what employees may have been told about the benefits of unionization.  

Employers who currently are not unionized should therefore seek to have in place mechanisms designed to reduce the risks of their employees being susceptible to union organizing efforts. These include maintaining open communications with rank-and-file employees to identify issues that may be focal points of unrest, formulating effective approaches to resolving those issues, and holding management staff accountable as part of their supervisory responsibilities. 

Employers should also consider developing rapid response plans before a union-organizing campaign materializes. This plan should include retaining professionals familiar with the NLRB’s process for handling elections and who know how to help develop the best counteractive measures.    

 

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.