In a recent decision impacting both unionized and union-free employers – Purple Communications – the National Labor Relations Board (NLRB or “the Board”) has expanded employees’ rights to use their employers’ email systems during nonworking hours to engage in union organizing activities or other protected communications. Further, new NLRB rules will speed up union elections and hamper employers’ ability to respond to union organizing activities.

Expanded Usage of Company Email Systems

In Purple Communications, the company assigned employees individual email accounts on its corporate email system. The accounts were accessible at the employees’ work stations, in their homes and on their phones. The employer’s policy – following existing NLRB law – banned use of its email system to send personal email or to engage in activities on behalf of unaffiliated organizations. But a union, after losing an NLRB-conducted election at the company, filed objections claiming that this email policy interfered with the employees’ freedom of choice in the election.

An Administrative Law Judge, relying on the Board’s 2007 decision in Register Guard, ruled that the employer’s policy was lawful. In Register Guard, the Board ruled that employers could ban the use of their email systems for nonwork purposes because email systems are equipment, and employers could ban their employees’ use of company equipment for nonwork purposes.

In a 3-2 decision (split down political party lines), the NLRB overruled Register Guard. The majority adopted a “presumption” that employees who have rightful access to their employer’s email system may use the email system to engage in protected communications during nonworking hours. An employer may rebut this presumption “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” But, even where special circumstances exist, an employer may restrict the use of its email system only to the “extent . . . necessary to maintain production and discipline.” As the dissenting Board members observed, it will be difficult, if not impossible, for employers and employees to apply these rules to individual email messages sent in real time.

The decision also threatens the longstanding rule allowing employers to confine distribution of literature to nonworking areas and during nonworking time. An email message may, as the majority recognized, constitute solicitation or distribution depending on its content. Nevertheless, the Board characterized email systems as “mixed-use area[s], in which the work-area restrictions permitted on literature distribution generally will not apply.” As one dissenting member observed, however, the sender of an email may not know whether its recipients are working. Inevitably, employees will send, receive, review and compose emails during work time.

Employers should review and revise their electronic communications policies in light of Purple Communications;indeed, nearly every employer’s email policy is likely subject to attack under this decision. Further, monitoring employees’ use of their email systems for legitimate business reasons, e.g., to ensure they are not used for sexual or other unlawful harassment, may be difficult under this ill-advised decision, lest the NLRB conclude that such monitoring constitutes unlawful surveillance of union or protected concerted activity (which could cover any employee discussion or gripes about their terms and conditions of employment).

The Board’s decision applies only to workers who are granted access to their employers’ email systems and does not obligate an employer to provide such access. This exception is not helpful, giving employers the choice of permitting uncontrolled use of their email systems or the unpopular and often impractical choice of revoking employee access to corporate email entirely.

Expedited Union Elections

The new election rules are written to prevent what unions and some politicians view as undue delay in holding union representation elections by restricting the due process rights of employers.  Thus, the expedited timeline will give employers less time to react to union organizing or to formulate and communicate its position to its employees. Moreover, employees now have less time to carefully consider the implications of the union’s presence in the workplace.

The new rule goes into effect on April 14, 2015. Here are the highlights:

  • Elections must be held as soon as practicable, likely no more than 20 days after the filing of the petition;
  • Employers must provide the union with their employees’ personal email addresses and phone numbers where available;
  • Pre-election hearings may be scheduled as early as eight days after the filing of the petition;
  • Employers must, within seven days of the filing of the petition, submit a detailed statement outlining the disputed issues, which will limit the issues at the hearing and in any subsequent litigation;
  • The only issues to be addressed at the hearing will be those issues necessary to determine whether the election should take place;
  • Disputes over the eligibility or inclusion of voters will be deferred until after the elections and will be resolved only if there may be an impact on the result of the election;
  • The parties must deliver their closing arguments after the hearing and the opportunity for post-hearing briefing will be eliminated except in rare circumstances;
  • Elections will not be stayed pending NLRB review of the Regional Director’s decision.

The expedited election timeline means that employers will no longer have the luxury of ignoring the possibility of union-organizing activity until such time as a representation petition is filed.  Employers must be ready to communicate the pros and cons of union representation in advance of a union-organizing campaign. In addition, supervisors should have a solid grounding in the complex area of labor law and should be trained to detect the beginnings of union activity.

Conclusion

These seemingly simple changes in Board law may have a profound effect on union and protected concerted activity. They allow for widespread use of email to air employee concerns, solicit for a union and distribute union literature. If this activity produces employee signatures on a union petition or authorization cards, the employer will be faced with a hastily conducted NLRB representation election with little opportunity to respond.

Accordingly, all employers should (1) consider restricting email access to only those employees who require it for performance of their jobs, and (2) review and revise their corporate email policies and no-solicitation/no-distribution rules and practices. Moreover, union free employers should maintain competitive wages and benefits, upgrade employee communications and implement other lawful union avoidance strategies.