Two Employee-Friendly NLRB Events

December, 2014

Two important employee-friendly events recently occurred at the NLRB of which employers should be aware. The first is a new rule that provides for “quickie” union elections. The second is a decision about how employees may use an employer’s email system for union organizing or other protected activity. First, the new rule:

The new “quickie election” rule provides for a faster process for union certification elections. While streamlined processes are generally a good thing in life, the fact that elections can happen much more quickly deprives employers of time to educate their employees on their perspective about union organizing. Here is a summary of the proposed changes:

  • Parties can electronically file election petitions and other documents related to the petition and related hearings.
  • The employer will be required to provide a Statement of Position which will identify the issues the employer may want to raise at the pre-election hearing. If an issue is not raised in the Statement of Position, an employer will not be allowed to raise the issue at hearing. The Statement of Position will be due one day prior to the pre-election hearing. Employers will be required to provide a list of all prospective voters with their job classifications, shifts, and work locations to the NLRB’s regional office and to the other parties.
  • Within two days of a decision approving of or directing an election, the employer must provide a list of phone numbers and email addresses of all prospective voters to the other parties.
  • In the past, elections were generally stayed for about 25-30 days pending an appeal. Now, the elections may immediately take place even if the decision to allow an election is appealed.
  • Parties are allowed to file a written brief after a pre-election hearing only if the NLRB Regional Director determines it is necessary. The parties previously had a right to file a written brief within 7 to 14 days of the close of a pre-election hearing.
  • Pre and post-election hearings will generally occur in a quicker timeframe, with the pre-election hearing generally taking place within 8 days of the petition being filed, and any post-election hearing taking place within 14 days of any objections being filed.

Taking these changes together, elections will now take place within about 10-14 days of a petition being filed, as opposed to about 6 weeks between petition and election under the prior rules. This gives employers far less time to educate employees about their perspective on the issues involved in the election. Additional detail on the rules can be found here at the NLRB’s website.

Meanwhile, the NLRB also issued its Purple Communications decision that grants employees greater freedom to use an employer’s email systems to engage in protected activity. A prior decision – focusing on employers’ property rights over their email systems – held that employers can generally prohibit employees from using their email systems to engage in protected activity. Purple Communications decided that employees who have been granted access to the employer’s electronic communications systems may generally use those systems to engage in protected activity on non-working time.

The decision did state that an employer may be able to articulate production or discipline-related reasons for restricting employees’ abilities to use the electronic communication systems for protected activity. It noted that a total ban on such activity would be permitted in only “rare” cases.  However, it provided an example of a partial ban that may be upheld, such as prohibiting employees from sending large video or audio files – even if connected with protected activity – because the employer could demonstrate that it would have the effect of slowing down an employer’s network.

The decision also noted that it did not prohibit an employer from continuing to monitor its electronic systems for productivity or harassment purposes, but it cautioned employers that elevating their monitoring during times of union organizing could violate an employee’s NLRA rights. Finally, the decision was limited in that it did not address non-employee rights to use an employer’s electronic communications. Presumably, non-employees would not have those rights unless they were granted access to the employer’s communication systems.

In light of this decision, it will be important to review your electronic communications and solicitation and distribution policies to ensure that they do not contain language that is prohibited by this decision. For assistance in reviewing your policies, or for any other questions about union organizing or NLRA protected activity, contact Cascade today.


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