In RHCG Safety Corp., the Board unanimously decided that a supervisor’s text message to an employee, “U working for Redhook or u working in the union?” was unlawful interrogation. The Board, significantly including Republican Chairman Miscimarra, rejected the employer’s argument that text messages are not coercive. Texting may seem informal to employers and employees alike, but the method is often irrelevant to the determination of lawfulness of a communication related to union issues. Employers should consider developing rules for supervisor texting related to their work, as well as record retention policies to attempt to deal with the nearly countless electronic communications that are “out there.”
In the same case, the two Democrats on the Board took an expansive interpretation of the new “quickie election” rules and decided that an employer must provide a union with email and telephone number information for eligible employees that is found solely on personal cellphones of its supervisors when the employer provides a voter list for a Board election. Under the rules, employers are required to provide voter lists to the union within two business days of an election decision by an NLRB Regional Director. The lists must include “available” home and cell phone numbers, and email addresses. Even though culling through and collecting information from supervisors’ cell phones is likely to be arduous, intrusive, and mistake-prone, the Board now views the information on a supervisor’s cell phones as “available” to the employer. Chairman Miscimarra dissented from this part of the decision, noting the practical problems that the ruling creates for employers, including the fact that the “quickie election” rules do not let employers obtain a definite determination on supervisory status until after the election occurs, and after the voter lists are provided. Look for a change in the Board’s position on this issue when the Board has a Republican majority and an opportunity to revisit the issue.