Labor & Employment Law Alert: New NLRB Rulings and What They Mean for Your Business

This will bring you up to date on the new NLRB rule on union elections and the NLRB’s new email decision – both issued in December – and what they mean for your business.

New Election Rule

The NLRB reissued the “quickie” or “ambush” election rule, which shortens the time between the date the union files a petition and the date of the election from 38–42 days to roughly 10–20 days. This rule makes the biggest changes to the NLRB election process since its inception in 1947.

• The new rule goes into effect on April 14, 2015, although the U.S. Chamber of Commerce and others have sued to vacate the rule. But the prevailing wisdom is that the challenges will fail and the new rules will go into effect on that date.
• The shortened time period is important for employers because sometimes employers don’t know that union organizing is happening until the petition is filed. Until then, the only source of information employees have about the pros and cons of union representation is from the union.
• Employers usually want to balance out the debate by providing information of their own. That’s tough to do with only 10 to 20 days to react.
• The NLRB’s overall approach to an election will be “Vote Now, Understand Later.” In other words, if there is an issue of voter eligibility, he/she will get to vote and eligibility may be decided after the election.
• The new rule requires employers to give the union more information on employee lists (including phone and email contact information), and the list is due sooner.

New Email Case

The NLRB also issued an important decision about the use of email in an organizing drive. The Purple Communications decision gives employees the right to use company email systems to circulate union materials. However, this rule is subject to the following:

• The rule applies only to employees who already use the company email system in the course of their work. The rule does not require employers to provide such access.
• An employer may justify a total ban on non-work use of email by demonstrating that “special circumstances” make the ban necessary “to maintain production or discipline.” This is undefined, but a high bar. It’ll be a rare case where “special circumstances” justify a total ban on non-work email.
• If there is no justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline, for example, uniform enforcement of a “work time is for work” policy, requiring employees to only conduct personal business on the computer during designated break times.

What Next?

The “quickie” election rule and the new email access case, viewed together, give employees and unions unprecedented control over how – and by whom – information is communicated in the workplace. Employers now have to provide the union with a list of employees’ email addresses shortly after a representation petition is filed, and must allow employees to use the company email system to campaign for the union.

Consider the following steps some of our clients are taking now:

1. Training managers and supervisors on recognizing the signs of union organizing before the petition is filed. This is an opportunity to keep supervisors involved and engaged so they know how to monitor, report, and legally respond to union activity.
2. Engaging employees in positive communications about the company, its competitive wage and benefit package, its open door policy, and how employees can access management to learn about what’s happening in the company and share what they are thinking.
3. Preparing campaign information materials ahead of time so that they are ready to go when they are need.
4. Reviewing whether the existing email policy needs to be changed. (Union contract provisions that restrict employee use of company email may no longer be valid.)
5. Ensuring that other necessary policies are in place and up to date, including non-solicitation, social media, and open door/issue resolution policy.

Please let us know if you would like to discuss these and other actions you can take.

If you have any questions about the content of this alert, please contact Victor Kisch.