For organized labor, Christmas has come early. Unfortunately, Americas’ employers received a lump of a coal
Late last week, President Obama’s National Labor Relation’s Board finalized the so-called “ambush election rules”—a gift that was at the top of every union’s wish list. By speeding up the timeframe for representation elections, this new regulation will significantly handicap employers’ ability to contest union organizing drives.
As Siegel O’Connor has previously noted, the average time between when a union files a representation petition—the first step in organizing a workplace into a union—is 38 days, but this new rule would reduce that to as few as 10 days. Consequently, unions could launch guerrilla-organizing campaigns that, because of the compressed timeline, deny management its legal right to discuss with their employees whether a union has anything worthwhile or constructive to offer them or the company.
Employers across the country have strongly criticized the change. For instance, the Retail Industry Leaders Association (RILA) issued the following statement:
This flawed rule is harmful to both workers and employers. By dramatically changing the procedures that govern union elections, the rule limits the information available to employees prior to entering the voting booth, potentially subjects employees to harassment at home and undermines the due process rights of employers.
Bottom Line for Employers
Fortunately for America’s employers, these new regulations don’t go into effect until April 2015; additional legal and legislative challenges are likely. In the interim, however, Employers should contact their respective members of Congress and demand an end to the Obama NLRB’s hyper-partisan antics. Employers are also urged to contact their labor counsel and begin developing a strategy for contesting ambush elections.Read More
Earlier this week, the National Labor Relations Board (NLRB) issued a decision (Purple Commc’ns Inc) giving employees the right to use employers’ email systems for non-business purposes—including union organizing. This ruling overturns the Board’s 2007 decision in Register Guard, and opens up yet another front in the partisan Board’s war against employers.
In its decision, the Board declared the analysis in Register Guard to be “clearly incorrect,” and one that focuses “too much on employers’ property rights and too little on the importantance of email as a means of workplace commutation.” As a result of this ruling, agues the Board, the NLRB “failed to adequately protect employees’ rights under the Act” and abdicated its responsibility to “adapt the Act to the changing patterns of industrial life.” Indeed, throughout its analysis, the Board justifies its ruling by referencing email’s new role as the “primary means of workplace discourse.”
Having dismantled Register Guard, the Board will now adopt a “presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time.”
In an attempt to mollify employers, the Board offers the following three limitations on employee’s ability to use email for organizing purposes:
- This decision applies only to employees who have been granted access to the employer’s email system in the course of their work; employers are not required to provide such access
- Employers 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 decision does not address nonemployees or any other type of electronic communication.
These limitations, however, offer little solace to employers already struggling to comply with the avalanche of union-friendly regulations churned out by an increasingly hostile NLRB.
A Powerful Dissent
The Board’s decision in Purple Commc’ns Inc., is unprecedented. As Board Member Philip Miscimarra notes in his dissent, “The [National Labor Relations] Act has never previously been interpreted to require employers, in the absence of discrimination, to give employees access to business systems and equipment for NLRA-protected activities that employees could freely conduct by other means.” Furthermore, it is all but impossible “to determine whether or what communications violate restrictions against solicitation during working.”
Member Johnson, who penned his own 32-page dissent, hammered the majority’s decision for essentially forcing employers to subsidize speech in violation of the U.S. Constitution. Johnson argues, “The First Amendment violation is especially pernicious because the Board now requires an employer to pay for its employees to freely insult its business practices, services, products, management, and other coemployees in its own email. All of this is now a matter of presumptive right…”
Looking forward, Johnson’s dissent warns that “Taken to its extreme, the majority’s…rationale would just as easily apply to taking over an employer auditorium, or conference room in the middle of the workday during an employer presentation/conference.
The Road Ahead
On a practical level, however, employers must now re-evaluate their internal rules and regulations regarding employee use of company email. Specifically, Purple Commc’ns Inc has now rendered most employee handbooks obsolete; employers should, over the next few weeks, review their employee email communications policy, and contact their labor counsel to examine how this stunning new decision will impact existing company policies.Read More
Last month, National Labor Relations Board Regional Director Jonathan Kreisberg hosted an informational breakfast at the Board’s Region 34 office in downtown Hartford. This breakfast, while informal, offered attorneys a unique perspective on the current state of the NLRB—at both the regional level, and in Wa
should pay particular attention to these five points:
While Director Kreisberg’s remarks covered a wide-range of topics, employers
- Budget concerns will continue to result in talks of regional downsizing, and, perhaps, even elimination. While Director Kreisberg doesn’t believe Regional 34 is at immediate risk, the cases currently covered by Regional 34 could eventually be split between Boston and New York.
- The NLRB’s case in Register Guard case could be overturned, and has been targeted by the Board’ General Counsel. Under Register Guard, employers may prohibit employees from sending non-job related solicitations using the e
mployer’s email system, including union-related communications. Overturning this case would give unions yet another strong tool to assist in their organizing efforts.
- Social media will continue to be a red-hot issue for the Board. Director Kreisberg discussed the importance of employer’s narrowly tailoring social media polices in accordance with the guidelines offered by both the General Counsel and the National Chamber of Commerce.
- “Non-competitive” claims made by employers at the bargaining table are going to be subject to stricter scrutiny, which will likely include the disclosure of financial information.
- Quickie, or “SNAP,” elections remain a very real (and, for employers, very scary) possibility. While the Board has proposed a rule that would allow such quickie elections to take place, such elections remain a hot-button issue. Indeed, serious questions remain as to whether a three-member Board would even make such a profound change to the National Labor Relations Act
Bottom Line for Employers:
Each of these five issues will have a significant impact on employers. Therefore, it’s important that employers remain update-to-date on these rapidly developing issues—either through consultation with counsel or by checking out one of Siegel O’Connor’s labor and employment seminars. For more information, please contact Bud O’Donnell.Read More