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NLRB rulings have far-reaching impact on employers and policies

by Tony Puckett

In December 2014, the National Labor Relations Board (NLRB) delivered two major edicts that affect all employers. The first speeds up the union election process so employers will have less time to respond to a petition. The second allows employees to use employers’ e-mail systems for union organizing and other protected concerted activity, such as complaining about working conditions. 

How broad is new rule?
The NLRB has changed the rules on employee use of the employer’s e-mail systems for labor organizing. The NLRB’s new rule states employee use of e-mail for union-related communications on nonworking time must “presumptively” be permitted by employers that allow employees access to their e-mail systems. In the case, the Board reversed its prior precedent, explaining that it had focused too much on employer property rights and too little on the importance of e-mail as a means of workplace communication.

The NLRB characterized its new rule as “carefully limited.” First, the Board stated, the new rule applies only to employees who already have been granted access to the employer’s e-mail system in the course of their work. The rule doesn’t require an employer to provide e-mail access to employees. Second, the employer may justify a total ban on nonwork use of e-mail, including union-related use on nonworking time, “by demonstrating that special circumstances make the ban necessary to maintain production or discipline.” The Board added, however, that a total ban on e-mail use “will be the rare case.”

Third, even without justification for a total ban, an employer may apply uniform and consistently enforced controls over its e-mail system to the extent necessary to maintain production and discipline. The NLRB didn’t provide any examples of the production or discipline interests that would support limited restriction on employee union-related e-mail use. The Board stated only that “an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction.”

The NLRB added that employers may continue to monitor their e-mail systems for legitimate management reasons, such as ensuring productivity or preventing activities that could create liability for the employer (e.g., workplace harassment). Purple Communications, Inc., 361 NLRB No. 126 (2014).

What this rule means for all employers
For all employers—regardless of whether your workplace is unionized or not—it is important to understand the scope of this new rule. The NLRB stated the rule means employees have a right to use their work e-mail to engage in “statutorily protected discussions about their terms and conditions of employment while on nonworking time.” That appears to mean the new rule will allow employees to send each other e-mails during break time, meal periods, or after work about any issues or complaints they mutually have with their wages, benefits, work schedules, and any other conditions of employment. The Board added that this e-mail right includes “an initial organizational campaign” for a union.

Important next steps for employers
Effective immediately, you should review your policies on e-mail and computer use for compliance with the NLRB’s new rule. While tests of the rule’s limits are certain to follow, those who don’t comply face possible challenges to their workplace policies, including claims of unfair labor practices, by nonunionized employees and unions alike. You also should be on guard of the possibility that this ruling opens the door to additional efforts by the Board to increase union access and make it easier to unionize nonunion employers.

NLRB ruling on ‘ambush’ elections poses real threat to nonunionized workplaces
The NLRB also issued its new rule for union organization elections. The rule makes several changes, most significantly shortening the time frame for conducting a union election, requiring employers to provide employee e-mail addresses and phone numbers to unions within two business days of the election petition being filed, and postponing most disputes about the election—such as which employees are eligible to vote—until after the election is held. The rule, which goes into effect April 14, 2015, also permits employees or unions to file election petitions electronically.

Need to know more? In 30 minutes, NLRB’s New Quickie Elections Rule: How to Avoid a Union Ambush NOW – on CD will explain what the new rule means for non-unionized workplaces, and importantly, what you can—and should—do now to prepare and minimize any adverse impact this new NLRB final rule on quickie elections could have on your workplace

Bad news for employers
This new election rule has been referred to as authorizing “quickie” or “ambush” elections because it speeds up how quickly the election is held. The rule eliminates a previously required 25-day period between the date the election was ordered and the election itself. The time frame for an election had averaged 30 days, and it could be held as long as 42 days after the petition was filed. This now may be shortened to as few as 10 days between the filing of a petition for certification of a union and the election to vote on union representation.

The time between the filing of an election petition and the election itself has traditionally been the employer’s campaign period. This was when an employer often would learn of union interest among employees for the first time, organize and implement a campaign to convince employees to vote against the union, and explain to employees why it believes a union is unnecessary. Union leaders know that the longer the campaign period, the more likely it is that union support will soften among employees.

Shortening this campaign period by two-thirds to three-quarters puts employers at a substantial disadvantage in the election. Unions can have their campaign in full gear before filing an election petition. That means employers will have to be more vigilant in addressing employee interests before a petition is filed—and really on an ongoing basis.

Bottom line

The NLRB’s new election rules, combined with its new rule on employee use of employer e-mail systems for union organizing, dramatically change the playing field for union elections. Employees who already have access to their employer’s e-mail system for work purposes now also have a protected right under NRLB case law to use the employer’s e-mail system to encourage union support. In addition, the new election rules make it clear that you should be prepared to rapidly respond to a petition for a representation election.

You are also encouraged to review your solicitation, distribution, and bulletin board policies as well as establish company access rules. Make it a priority to train supervisors on detecting and reacting to union activity. Untrained managers create the greatest liability for employers that want to comply with the law.

Tony Puckett is an attorney representing management in all aspects of labor and employment law with McAfee & Taft and practicing in the firm’s Oklahoma City, Oklahoma, office. He may be contacted at tony.puckett@mcafeetaft.com.