Last month, the National Labor Relations Board (NLRB) ruled in a 3-2 decision that employees have a presumptive right to use their employers’ email systems to discuss protected activities such as union organizing, reversing its long-standing precedent to the contrary. On the heels of this decision, an equally divided NLRB announced the issuance of its Final Rule, which significantly expedites the union election process and requires employers to postpone virtually all litigation over voter eligibility until after workers vote on whether to join the union. Business groups have already sued to block the Final Rule, and will likely litigate the email rule later this year. If upheld, these developments will make it substantially more difficult for employers to effectively resist union organizing efforts.
Use of Employer’s Email for Protected Activities
On December 11, 2014, the NLRB ruled in Purple Communications, Inc. 361 N.L.R.B. No. 126, that employees have a presumptive right to use an employer’s email system during non-working time for communications protected by the National Labor Relations Act (NLRA), such as discussion of wages, hours, conditions of employment, and union organizing. This decision overrules precedent in Register Guard, 351 N.L.R.B. 1110 (2007), which held that the NLRA did not give employees the right to use employer equipment or networks, including employer email addresses, to discuss union issues or other concerted activities protected by Section 7 of the NLRA.
In Purple Communications, a union sued the employer after it lost an election to represent employees of Purple Communications, a company that provides sign language interpretation services. The employer had a policy permitting use of company-owned electronic equipment and systems, including its email system, for “business purposes only,” and that prohibited the use of its email system for “activities on behalf of organizations … with no professional or business affiliation with the Company.” According to the employer, this restriction was aimed at reducing workplace distraction. However, the union argued that this restriction interfered with employees’ Section 7 rights.In upholding the union’s position, the NLRB noted that Register Guard undervalued employees’ Section 7 rights and overemphasized employers’ property rights. In addition, it concluded that Register Guard incorrectly analogized company email to company-related “equipment” such as bulletin boards, an analogy that fails to recognize the (increasing) importance of email as a means by which employees engage in protected activities. Instead, the NLRB likened company email to a “gathering place” such as a cafeteria, and applied longstanding Supreme Court precedent guaranteeing the use of natural gathering places for Section 7 communications.
The NLRB did note certain limitations to this employee right. For instance, employers are not required to provide email access to employees. Instead, the presumptive right to use an employer’s email attaches once the employer has granted email access. Moreover, an employer may justify a comprehensive prohibition of non-work-related emails by demonstrating that special circumstances make the ban necessary to maintain production or discipline (though the NLRB did not elaborate on what constitutes special circumstances). Without justification for a complete ban, an employer can still consistently enforce uniform controls over its email system to the extent such controls are necessary for maintaining production and discipline. In addition, the NLRB expressly declined to address email access by non-employees (such as outside union organizers) or other types of electronic communications systems, as they were not at issue in this case.1
Expedited Election Rules
On December 12, 2014, only one day after deciding Purple Communications, the NLRB voted to issue a Final Rule amending the procedures that govern the formation of collective bargaining relationships between employers and groups of employees. The Final Rule is scheduled to take effect on April 14, 2015.2
A typical election process commences when a union files a petition at an NLRB regional office, and concludes with a secret ballot election in which employees vote on whether they favor union representation. The Final Rule shortens the duration between the filing of the petition and the date of the election, in addition to imposing new requirements upon employers. Some key changes include the following:
- Pre-election hearings must be held within eight days after the notice of hearing is served. No deadline existed previously.
- Regional directors will have discretion to limit the scope of pre-election hearings by excluding evidence on voter eligibility and delaying the resolution of those issues until after the election, even if the eligibility of many voters in the bargaining unit is still in question.
- An employer must file its position statement detailing its position on all issues it plans to raise, such as issues regarding the composition of the proposed bargaining unit or the time and place of the election, by noon on the business day before the pre-election hearing. Arguments not raised in the position statement are waived, and the pre-election hearing officer will have discretion to ask the parties for evidence supporting their positions if any arguments in the position statement are disputed.
- As part of its position statement, the employer must now include a list of prospective voters, including their job classifications, work shifts, and work locations. Such a list was previously required only after the regional office had directed an election to be held.
- Within two business days (rather than seven calendar days, as previously required) after approval of an election agreement or the direction of an election, an employer must provide the union with a list of eligible voter names and addresses, in addition to their telephone numbers and personal email addresses, the latter two of which were previously not required.
- Regional directors will have discretion over whether employers may file post-hearing briefs addressing issues raised at the pre-election hearing. Previously, employers could file post- hearing briefs as a matter of right.
- Regional directors will no longer be prohibited from scheduling the election less than 25 days after directing an election. Instead, the election should be held at the “earliest date practicable.”
- NLRB review of post-election disputes will now be discretionary rather than compulsory.
While the Final Rule does not specify a time frame in which union elections must occur, it would allow elections to be held in as little as 14 days after the employer is first notified of the election petition, compared to the 2013 median of 38 days, or 59 days in contested cases. On January 5, several business trade groups3 filed suit against the NLRB, alleging that the Final Rule violates the NLRA by restricting an employer’s ability to litigate issues such as voter eligibility, and violates the First Amendment by curtailing an employer’s right to communicate with employees through substantially shortening the period between the election petition and the election itself.
Pending potential appeal of Purple Communications, employers should review their electronic communications policies to ensure compliance with the NLRB’s new standards, or to at least understand the risks that current policies might pose. Employers may consider eliminating email system access entirely for jobs that do not require such access. Employers may also modify policies on email usage to include a narrow carve out for communications regarding wages, hours, conditions of employment, and union organizing. Employers can further remind employees that they have no expectation of privacy when using company email systems, even if they engage in activities protected under Section 7. In addition, employers may consider uniform and consistently enforced email restrictions, such as prohibitions on certain types of email attachments, if the employer can demonstrate that this is necessary to maintain production and discipline. For employers inclined to maintain existing email policies while awaiting appeal, it is important to remember that the mere maintenance of a policy that interferes with employee rights under the NRLA, even without enforcement, can be used to invalidate an employer’s election victory.
There are also steps that employers can take to guard against the impact of the Final Rule before it takes effect in April. With significantly less time to communicate with employees after the filing of a petition, employers may consider educating employees about the facts of union representation and the collective bargaining process in advance of any organizing activity.4 Employers additionally may wish to prepare in advance their positions as to appropriate bargaining units, in terms of both location and job classification, and any communications they would issue to employees on unionization. Finally, employers can take a number of preventative measures that reduce the threat of unionization and that heighten their understanding of workplace issues. For instance, employers may train management on the importance of positive employee relations and the potential impact of unionization, and conduct regular audits to keep apprised of workplace issues. Given the ease and speed with which unions may now organize, these precautionary measures have heightened urgency.