Employers Beware! NLRB Changes Rules to Help More Employees Unionize

It is no secret that the goal of the current National Labor Relations Board is to increase unionization and stop the steep decline of unions. A majority of the five Board members are appointed by the President and support his platform on labor issues. They have the ability to fashion laws that affect nearly all employers across the country.

In December, 2014, the Board announced two dramatic rule changes designed to make it easier for employees to unionize. First, the Board reversed its prior rulings and declared that employees now have the right to use company e-mail to solicit coworkers to unionize. Second, the Board is implementing so-called “Quickie” or “Ambush” elections. Both changes increase the potential for union organizing of nonunion workplaces. Businesses should be taking immediate steps to respond to these changes.

Right to Use Company e-mail to Unionize

On December 11, 2014, the Board overruled its own prior decisions and held that employers no longer have the right to prohibit employees from personal use of company e-mails, opening the door for employees to use company e-mails to solicit workers to join a union. Purple Communications, Inc. and Communications Workers of America, 361 NLRB No. 126 (2014).

In Purple Communications, a group of employees filed a petition to be represented by a union. The Board conducted an election and the union lost. The union requested the Board to set aside the election on grounds that the employer’s policy prohibited employees from using company e-mails for personal purposes. The union complained that this unreasonably restricted workers from effectively communicating with each other about the unionization effort.

The employer vigorously opposed the union’s request, which appeared to be a case of “sour grapes” after losing the election. The employer argued that its e-mail system was personal property, and, under long-standing law, it had exclusive right as owner to control its use. The Board confirmed this right in Register Guard, 351 NLRB 1110 (2007). The company also argued that workers had a multitude of other options to communicate with each other, both at work and away from work. For example, they could call each other during breaks or away from work, they could visit with each other at breaks or away from work, they could mail information to each other, they could conduct meetings and rallies away from work, they could use their personal e-mails away from work, they could use Twitter, Facebook and many other social media options to communicate. There was no compelling reason to infringe on the employer’s property rights simply to provide another communication option to employees.

In a significant victory for unions, the Board, in a 3-2 decision, overruled Register Guard and compelled the employer to allow employees to use company e-mail systems for personal uses, including soliciting other employees to join a union, or for discussing wages, hours or terms of employment with other workers. The Board claimed that the employer’s property rights must be balanced by the employees’ rights to self-organize and that workplace e-mail systems are an important means of communicating in modern workplaces.

Fortunately, the Board outlined some limits to this new rule:

• An employer can preclude non-management employees from using its e-mail system for personal purposes (including union-related communications) if it prohibits them from using the e-mail system for any purpose, including work purposes. However, the employer cannot limit such employees to using e-mail for only business purposes.

• An employer may prohibit non-business use of e-mail during working hours.

• An employer may restrict employees from using e-mail for harassment or other communications which could result in employer liability. [However, the Board has increasingly challenged various restrictions on the content of e-mail usage. For example, in August, 2014, the Board held that an employer’s policy which prohibited “inappropriate” discussions was unlawful. Three D LLC, 361 NLRB No. 31 (2014). Moreover, employers often receive complaints from employees who feel they are being “bullied” by coworkers soliciting union membership. Employers will now face legal dilemmas in determining whether an e-mail (or series of unwanted e-mails) is lawful solicitation or unlawful “bullying.”]

• An employer may, in “highly unusual” circumstances, prohibit personal e-mail use if the employer can demonstrate that such restriction is necessary to prevent overloads or to protect the system from damage. However, the Board declared that such situations would be “rare.” An employer would bear a significant burden of proving that such use actually threatened its system.

• An employer may continue to monitor its e-mail systems provided it does so consistently and not in an effort to conduct surveillance of workers’ protected communications. (This will now create a legal “gray area” between lawful monitoring and unlawful surveillance) An employer may also continue to set limits on, for example, the size of attachments. An employer cannot increase its monitoring during union organizing campaigns or focus on employees’ union-related communications.

• An employer may inform employees that e-mails are not private and may be reviewed and monitored.

• An employer may restrict outside third parties, including unions, from access to its e-mail system for solicitation purposes provided it does so consistently with other outside solicitations and as long as the unions have other means to communicate with workers.

The Board’s new e-mail rule is a drastic change to employers’ property rights and its ability to control its internal systems. It provides a significant new tool to unions and their options for soliciting workers. The Board declared that its decision applies retroactively, meaning that employers whose policies currently restrict personal e-mail use may already be out of legal compliance.

Businesses need to evaluate their e-mail policies and determine whether they are in compliance with the new rule and whether any modifications should be made to protect their remaining property interests in such systems.

“Quickie” Election Rules

Several days after the Purple Communications decision, the Board took another step to promote unionization while at the same time reducing employers’ ability to react and respond to union organizing efforts. On December 15, 2014, a 3-2 majority of the Board adopted so-called “Quickie” election rules. The new rules include the following changes:

• Immediate elections. When a union gains enough support to file a petition for election, the election will be scheduled as soon as 10 to 14 days from the filing. This creates a significant advantage to unions. For example, a union could secretly spend months or even years disseminating information and seeking support from workers and could wait to file the petition until they are convinced they have majority support. They could time the petition concurrently with the employer’s busiest season, hoping that the employer would be distracted or prevented from devoting resources to opposing the union. There are very few rules regulating the information (or misinformation) that unions provide to employees to obtain their support, which is why employers had historically been provided with reasonable time after petition to provide rebuttal information to their employees before an election is held. Under the new rules, employers may only have days after the petition is filed to evaluate the petition, assert legal challenges, identify the likely issues that caused employees to seek union representation, assemble and present information to allow employees to make an educated choice during the election, and take other necessary steps to advocate its position.

• Compulsory position statements. Employers will be required to immediately file comprehensive “position statements” within days of receiving an election petition. Rights, information or challenges not contained in the position statement may be deemed to be waived.

• Immediate pre-election hearings. The Board will automatically schedule a hearing on pre-election issues within 8 days of the filing of the petition. This will limit employers and their counsel to only a few days to analyze the petition, determine whether there are legal issues that need to be adjudicated, research the applicable laws and cases, prepare and file the position statement, assemble witnesses and exhibits, prepare those witnesses and exhibits for the hearing, and prepare arguments and other items for the hearing.

• Streamlined hearings/reduced appeal rights. The Board will be authorized to significantly streamline the pre-election hearings and reduce the rights of employers to fully litigate issues. Some issues will be deferred until post-election status. The Board may rule on some issues based solely on the information in the position statements. Parties will not have the opportunity to file briefs but only a closing argument at the hearing. The right to appeal adverse decisions will be curtailed. Some appeals will be allowed only at the discretion of the Board. There will no longer be a stay of an election pending an appeal.

• Disclosure of personal phone numbers and e-mails. Employers will now be required to provide the union with the private, personal phone numbers and e-mail addresses of their employees, including employees who do not wish to provide such information to a union. This will allow the union to solicit employees even if those employees do not wish to be contacted. Some experts argue that this change will open the doors to “cyberbullying” as a new organizing tactic. Others contend that this change violates employees’ privacy rights over their personal phone numbers and e-mail addresses.

The new changes will go into effect on April 14, 2015. The rules are facing legal challenges. On January 5, 2015, a group of employer-affiliated associations, including the Society for Human Resources Management, filed a lawsuit seeking to enjoin the new regulations on several grounds, including that the regulations deprive employers of due process and failed to comply with the Administrative Procedures Act. However, unless the new rules are blocked by a court, Businesses should anticipate that they will be implemented and should already be taking action to address the anticipated increase in organizing activities.

Recommended Actions

The Board’s new e-mail decision and new “Quickie” election rules will present significant challenges to nonunion employers who seek to remain union free. There are a number of steps businesses should promptly take to respond to these changes:

• Review existing handbook policies on employees’ use of e-mail systems. Evaluate modifications necessary to comply with the new rules and to protect your remaining rights in relation to e-mail usage.

• Implement regular e-mail monitoring procedures (unless your organization is already in the midst of a union organizing campaign). Ensure that such monitoring is performed evenhandedly.

  • Advise employees that they have no right to privacy in any e-mail communications, personal or business.

  • Determine whether allowing personal e-mails would threaten your existing e-mail system.

  • Evaluate your policy on third party access to e-mail communications.

• Conduct training or refresher training to supervisors on recognizing and responding to union organizing tactics, laws, regulations, and strategies.

• Conduct training or refresher training to employees on the impact of unionization and the advantages of nonunion workplaces.

• Create a company “response team” including key HR representatives, management representatives, public communications representatives, and legal advisors. Ensure that the “response team” is prepared to take the appropriate steps to protect the company upon filing of any union petition.

• Evaluate likely “bargaining units” that could be recognized upon filing of a petition and consider steps to better protect the company through a closer combination of employee groups or a more distinct separation. Evaluate “borderline” employees (such as leads or front line supervisors) who may or may not be included in a bargaining unit and consider steps to refine their job duties to ensure that they would be classified (either in or out of the unit) in the most beneficial manner.

• Review and update handbook policies that may be relied on to address employee behaviors during a union organizing campaign. (Once a campaign begins or a petition is filed, policies cannot be changed to provide the employer with greater rights.)

• Take affirmative steps to improve employee communications. Listen to gripes and grievances. Offer effective solutions or fully explain reasons for existing practices. (Once a union organizing effort is underway, it can be unlawful for an employer to solicit “gripes” from employees and rectify them.)

The new rules are complex and will require education and training. Employers who wait until an organizing effort is underway will find themselves far behind the eight ball. Proactive employers will stand the best chance of successfully defeating a union petition.

Additional information on the Purple Communications decision, new handbook policies governing employee e-mail use or the “Quickie” election rules can be obtained by contacting the members of our Employment Law Team.

Written By:
Law Firm of Conway, Olejniczak & Jerry, S.C.