Vedder Thinking | Articles A One-Two Punch to Make Union Organizing Easier
December 15, 2014
Late last week, the National Labor Relations Board issued two major edicts. The first accelerates the union election process so that employers will have less time to respond to a petition. The second opens up employers' e-mail systems to employees for purposes of union organizing and other protected, concerted activity, such as complaining about their working conditions.
The Ambush Election Rule Is Now a Reality, and It Greatly Speeds Up the Union Election Process
For several years, the NLRB has flirted with changing the union election process in order to make it shorter and easier for unions to organize. Its first attempt in 2011 was struck down because of procedural errors. The NLRB reintroduced proposed changes earlier this year and has now finalized them. The new rules will go into effect April 14, 2015.
The new election rules overhaul the way the NLRB oversees representation elections to make them faster and easier for unions to win. Some of the more notable changes include:
The Net Effect of the Changes Is that Elections Will Occur Much Sooner. The practical effect of all the rules taken together is to shorten the time it takes for an election to occur. Most elections now occur five to six weeks after a petition. Under the new rules, it is likely that most will now be scheduled very quickly, 14 to 30 days after the filing of a petition. The change means it will be critical for employers to implement supervisory training on avoiding unions and spotting organizing before a petition is filed.
Employers Must Provide More Information About Employees Sooner. Seven days after a petition is filed, an employer must provide the union with a list of names, work locations, shifts and job classifications of employees in the proposed voting unit and any disputed classifications. Two business days after an election is directed, an employer must provide a list additionally containing each eligible employee’s name, home address, work location, shift, job classification and, if already in the employer’s possession, each employee’s personal e-mail address, home telephone number and cellular telephone number. The same information must also be provided about employees who will vote under challenge. Previously, only name and home addresses were provided, and they came later in the process. The change means unions will have more access to and information about employees during elections than ever before.
Pre-Election Hearings Are Becoming a Trap for Employers, If They Are Held at All. Hearings are no longer mandatory. Instead, employers have to describe the issues immediately following the petition filing, and each Regional Director has the discretion to determine whether to allow them to be resolved before the election. Unlike the proposed rules, the NLRB will not even require that voter eligibility issues be resolved in advance when 20% or more of the voters are impacted by the issue. In cases when pre-election hearings do occur, the NLRB does not even give employers an automatic right to brief the issues or any right to appeal from adverse decisions until after the vote. That means employers need to understand election unit issues quickly, or risk waiving them. It also means that employees may not know if they are in or out of the unit when they vote. Employers should plan for unions to game this system and need to be prepared to respond more quickly and creatively than ever before.
Electronic Distribution of Notices. Under the new rules, an employer will be required to post a notice to employees informing them that a petition has been filed. This preliminary notice must also be distributed electronically if the employer customarily uses electronic means to communicate with its employees.
The two Republican members of the NLRB issued a lengthy dissent to the new rules based on (i) the uncertainty resulting from resolving eligibility disputes after an election; (ii) the manner in which the new rules chill the ability of employers to effectively campaign; and (iii) the thinly veiled goal the NLRB’s majority has to make it easier for unions to win elections.
While there will be legal challenges to the rules, it is crucial that employers use the upcoming four months to prepare:
Employers with vulnerability need to train a campaign team, have standby counsel ready to step in, and prepare model materials now.
Employers need to take steps to assess their vulnerability to organizing and think proactively about how to engage employees and reduce that vulnerability.
Managers and supervisors need to be trained regarding effective union prevention and how to spot union organizing early, before a petition is filed.
Employers lost about 70% of the union petitions filed in 2014, a historic high. With these rule changes, expect more petitions and more union wins in 2015. Employers should take time now to review their preparations and ensure that they are not caught flat-footed by unions who wish to put the new rules to use.
Employers Must Allow Employees to Use E-Mail Systems for Protected, Concerted Activity
Last Thursday, the NLRB issued a long-awaited decision opening employers' e-mail systems to employees for both union organizing and all other forms of protected, concerted activity. Its decision in Purple Communications, made on a 3-2 party line vote, is a sweeping change in the law. For the first time, it requires employers to open their e-mail system to employees (but not directly to outside groups) for union organizing and even for concerted complaints and other forms of protested activity. That is true even if an employer otherwise restricts e-mail use to business-related purposes.
The NLRB’s ruling creates a presumption that all employees with e-mail access have a right to use it for union organizing or any other communications protected by federal labor law. While that presumption can be overcome by "special circumstances," the NLRB emphasized that this will be both rare and difficult to prove. "The mere assertion of an interest that could theoretically support a restriction will not suffice." Rather, an employer may implement only "uniform and consistently enforced controls over their e-mail systems to the extent that such controls are necessary to maintain production and discipline." The NLRB emphasized that the impacts justifying a restriction on e-mail use may not rely on the mere possibility of problems, but must demonstrate concrete harms. For example, the NLRB indicates it would allow restrictions on the size of attachments only to the extent an employer could identify that they "would interfere with the e-mail system’s efficient functioning."
Notably, this decision does not require that an employer provide employees with access to e-mail if access is not already provided for work purposes. Nor does it give unions and other non-employees the right to use an employer’s e-mail. As a practical matter, however, unions can avoid this distinction by simply having one employee supporter send or forward the union’s e-mail. In addition, the NLRB specifically noted that employers may continue to monitor their e-mail systems, just as they have done in the past. However, they may not change the way they do so in response to union organizing or other protected activity. This is consistent with the NLRB’s precedent regarding employer surveillance of protected, concerted activities.
While the case is being correctly described as a boon for union organizing, that is not the only impact. In a unionized work environment, it provides a new means for employees to communicate on a variety of issues, including grievances, contract demands, and coordination of protests. For all employers, it protects e-mails concerning protected, concerted activity related to employees’ terms and conditions of employment. That means employer e-mail systems can be turned into forums for complaining about wages and benefits, ridiculing supervisors, or soliciting support for lawsuits, to name a few. This is certain to generate new legal claims against employers who try to limit such activity.
There is still hope that the decision could be overturned in the courts or during later administrations. The two Republican members of the NLRB dissented. They noted that the old standard allowing employers to prohibit non-work use of e-mail was a bright line and was easier to enforce. They also expressed concern that it will be nearly impossible to determine whether an employee is using an e-mail system for protected, concerted activity during working time, and thus, employers may pay a huge price in terms of lost productivity.
There are several immediate steps that employers must take if they wish to avoid the risks created by this decision:
Employers Should Review and Revise Their E-mail Policies as Appropriate. Unless employers are willing to count on the case being overturned and accept the risk of charges, employers should move quickly to review and amend their electronic communications policies to comply with the NLRB’s decision. Those amendments would not only take account of the fact that employees can use e-mail for certain concerted, protected activity, but should remind employees that such use during working time is still inappropriate and also subject to monitoring (if that is the case).
Employers Should Educate Managers on the New Standard to Avoid Liability. Managers and supervisors can quickly react to e-mails by responding to them directly or discharging employees, which can create financial risks. It is important managers and supervisors understand what is now permitted by the NLRB, and how they can prevent the new rules from hurting productivity.
Employers Should Consider Who Truly Needs E-mail Access and How Broad That Access Should Be. While e-mail is increasingly widespread, there may be no need to give every employee access to the whole company’s e-mail directory or to templates for mass e-mailing. Employers should maintain systems to facilitate productivity, not union organizing.
The new election rules and the decision in Purple Communications make it easier for unions to organize employees, both by tipping the procedural scales in favor of unions and giving them more access to employees. Employers are going to have to be more ready to head off such attempts than ever before.
If you have any questions about these or other issues, reach out to J. Kevin Hennessy, Kenneth F. Sparks, Mark L. Stolzenburg or any other Vedder Price attorney with whom you work.