The National Labor Relations Board (NLRB) continued its assault on private sector employers by recently taking two actions designed to encourage easier and faster union organizing.
In a recent decision, Purple Communications, Inc., the NLRB, based on underlying premises that “everyone uses email” and that email is akin to a “natural gathering place,” ruled that it “will presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time.”1 Thus, if an employee has access to an employer’s email for business reasons, the employee now is permitted in most cases to use the employer’s work email during non-working time to communicate with peers about terms and conditions of employment and otherwise exercise his or her Section 7 rights.
An employer may rebut this new presumption “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” But the Board goes on to opine that it will be the “rare case” where special circumstances justify a total ban on non-work email use by employees.
In more typical cases, where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline. Restrictions may include prohibiting large attachments or audio/video segments, if the employer can demonstrate that these would interfere with the email system’s efficient functioning. The NLRB noted that the prior existence of a blanket prohibition on employees’ use of email for non-work purposes will not itself constitute a special circumstance.
The NLRB also noted that its decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability. Employers, however, must now balance their legitimate right to monitor email and usage for compliance with the employer’s policy against possible claims of unlawful surveillance by employees. An “employer’s monitoring of electronic communications on its email system will...be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”
The NLRB did not find that an employer must grant email access to all employees or that non-employees have the right to access an employer’s email system.
As a result of this decision, employers should:
- Review existing policies covering access to/use of email and make revisions to reflect this new decision.
- Review existing enforcement of policies to ensure consistency.
- Make clear to employees that they have no right to privacy regarding emails and attachments and that the employer has the right to monitor and review all email communications.2
- Consider if the company has positions where it can meet the burden of placing restrictions on the use of email for non-work purposes as necessary to maintain production and discipline.
- Consider the restrictions necessary to provide for the efficient functioning of its email system.
- Consider limiting the employees who need access to email.
The NLRB also recently adopted new rules that govern representation case procedures. The “quickie” or “ambush” election rules, by which they are commonly referred by employers, include the following key changes:
- Significantly shorten the median time from the filing of a representation petition to a vote from the present 42 days to 14-21 days — and perhaps as few as 10 days.
- NLRB Regional Directors typically will hold pre-election hearings much sooner now —typically on the eighth day after service of a hearing notice on the employer, which can be served electronically under the new rules.
- By noon of the seventh day after filing of the representation petition, employers must file a written position statement, which must include all legal issues and objections the employer seeks to raise about the petition/proposed bargaining unit. Failure to raise an issue constitutes a waiver by the employer from presenting evidence on the issue at the hearing. The position statement must include a list of all prospective voters with job classifications, shift and work location as well as name and home address. Thus, within a week of filing the petition, the union will have employee contact information.
- If the employer objects to the proposed bargaining unit as not appropriate, then it must identify in its position statement the bargaining unit it argues is appropriate. Failure to object to the proposed unit constitutes a waiver by the employer.
- Issues previously resolved pre-vote now will be resolved post vote — if necessary, including which employees are eligible to vote (as long as the eligibility dispute affects less than 20 percent of the group). Thus, employees likely will be voting without knowing if they are in or out of the bargaining unit.
- Employers must provide the union employees’ personnel email addresses and telephone numbers in addition to home addresses. Employees cannot stop these disclosures.
- Instead of the present seven days to provide voting lists, employers will have two business days.
Click here to view a copy of the NLRB’s chart discussing the difference between the present rule and the new rule.
Unless the new rules are enjoined pending the legal challenge filed by several national trade associations, they take effect April 14, 2015. These new rules provide employers very little time to campaign against a union once a representation petition is filed, and the new procedural requirements are unilaterally burdensome on employers.
Employers must actively plan now to establish pro-employer programs to educate their employees about unions and the lack of need for them in the employer’s workplace, before the employer is a target of a union organizing campaign. Additionally, employers should review their current operations for the appropriateness of potential bargaining units and whether leads and first-line supervisors meet the National Labor Relations Act’s definition of supervisor. With the time between the filing of a petition and election shortened to 10-21 days, employers faced with a petition under the new rules will have lots to do and little time.