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
This morning, the U.S. Supreme Court held that personal care assistants who are paid by the state of Illinois—but mostly supervised by the homecare recipients they serve—are not “full-fledged” public employees. As a result, these employees cannot be forced to pay union dues or fees.
In a 5-4 decision, the majority ruled that requiring personal care assistants to pay union dues would violate the First Amendment rights of nonmembers who disagree with the positions that unions take.
The Court noted that these assistants are “different from full-fledged public employees,” because they work primarily for their disabled client, and do not receive the same benefits as regular state employees.
This decision deals a considerable blow to organized labor. Unions are losing members—and, in turn, the dues and fees provided by said members—at an astonishing rate. Had the court ruled in their favor, public-sector unions would have had access to 26,000 new members—and their wallets. And given that nine other states, including Connecticut, allow personal care assistants to join unions, the impact will be felt far beyond Illinois.
In making its decision, the court refused to overturn Abood v. Detroit Board of Education, a 1977 Supreme Court cases that requires “full-fledged” public employees to pay dues, even if they are not members of the union. Justice Alito, writing for the majority, noted that:
Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems…If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confine Abood’s reach to full-fledged state employees.
However, labor unions will likely emphasize that the ruling stressed the unique nature of the personal care assistant:
PAs are much different from public employees. Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining on their behalf is sharply limited.
Bottom Line for Employers:
Look for this decision to trigger a battle over the definition of “full-fledged public employees,” as well as a renewed organizing push from public sector unions.Read More
Last month, unions across America received a significant boost when the Sixth Circuit Court of Appeals upheld a 2011 ruling by the National Labor Relations Board that allowed unions to organize smaller “micro units” of workers.
The 2011 case, Specialty Healthcare, 357 NLRB No. 83 (Aug. 25, 2011), aff’d sub nom, 727 F.3d 552 (2013), involved a union that wanted to try and organize a group of nonprofessional nursing assistants—despite the employer’s argument that other nonprofessional employees should have been included in the unit. In its ruling, the Board upheld the union’s position, while noting that if an employer believes employees should be included in a particular unit, it is the employer’s burden to demonstrate those workers “share an overwhelming community of interest.”
In its review of the Specialty Healthcare decision, the Sixth Circuit determined that the Board has “wide discretion,” in determining the constitution of a bargaining unit”—unless “the employer establishes that [the Board’s decision] is arbitrary, unreasonable, or an abuse of discretion.”
The Board’s decision in Specialty Healthcare turned 75 years of labor law on its head. And now, the Sixth Circuit has doubled-down on this seismic legal shift by affirming the Board’s decision. Yet, these rulings might still backfire on organized labor. Often, unions use micro units to gain a foothold in an employer’s workforce—the proverbial camel’s nose under the tent. In order to prevent unions from using the Specialty Healthcare decision to establish organizing beachheads, employers are now going to fight harder to keep their companies union-free.
Such an unanticipated consequence might toss a bit of cold water on organized labor’s post-Specialty Healthcare celebrations, but employers should still be wary. The Sixth Circuit’s decision will not only pave the way for an increase in union organizing activity; it will likely also embolden a National Labor Relations Board that already seems intent on giving organized labor an unfair advantage.Read More
On Tuesday, May 7, 2013, the United States Court of Appeals for the District of Columbia issued another decision against the National Labor Relations Board. This time, the court found that the NLRB had exceeded its authority when it issued the rule requiring employers covered by the National Labor Relations Act to post a notice informing workers of their right to unionize. (This same court, in January, 2013, invalidated the NLRB recess appointments made by President Obama; the NLRB has appealed that decision, Noel Canning v. NLRB, to the U.S. Supreme Court.)
In this most recent decision, National Association of Manufacturers v. NLRB, 717 F.3d 947 (2013), the court concluded that the NLRB’s rule was in violation of the National Labor Relations Act because it subjected an employer to an unfair labor practice for the failure to post this notice; and because it infringed upon the First Amendment right to free speech by forcing a company to disseminate a view that it did not agree with (i.e., the right to unionize).
Section 8(c) of the National Labor Relations Act grants employers the right to express “any view, argument or opinion, or dissemination thereof, whether in written, printed, graphic or visual form.” As long as there is no threat of reprisal, these communications are protected from being treated as unfair labor practices. The court stated that the NLRB’s rule violated Section 8(c) because “the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”
While this decision represents another significant setback to the NLRB, the court’s decision also raises the possibility that its rationale could be extended to other federal notice-posting requirements that have been imposed on employers by various agencies (i.e., OSHA and the EEOC). It remains to be seen whether this decision will generate that type of litigation.Read More