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NLRB Issues Major Decision on Employer Email and Major Rule on the Conduct of Representation Elections

January 13, 2015

In one decision and one rule, the National Labor Relations Board issued two major changes that will greatly impact employers.  The first, Purple Communications, 361 NLRB No. 126 (2014), reverses the Board’s prior ruling in Register Guard, 351 NLRB 1110 (2007), holding that in most cases employees have the right to use their employer’s email systems to engage in Section 7 protected communications.  The second, a rule issued by the Board on December 15, 2014 and effective April 14, 2015, changes multiple procedural aspects of Board-conducted representation elections, with the effect of making it more difficult for employers to contest such elections.

1.        Purple Communications

In Purple Communications, the Board held that an employer may not prohibit employees from using its email system to communicate about union issues, wages, hours, and other workplace concerns, even where personal use of email is otherwise prohibited.  In overturning its seven-year-old precedent in Register Guard, the Board held that employees’ Section 7 rights under the National Labor Relations Act outweigh employers’ property interests.  Specifically, the Board held that:

 1)         Employees who are authorized to use their employer’s email system in the course of their work generally have the right to use that email system to communicate with co-workers about workplace concerns during non-working time;

 2)        In order to limit non-working time use of its email system, an employer must demonstrate special circumstances necessitating the restriction, but the burden on such demonstration is high;

 3)        An employer may establish uniform restrictions on the use of email, such as prohibiting large attachment or audio/video segments, so long as they are consistently enforced and  the employer can demonstrate that the restrictions are necessary to the email system’s efficient functioning; and

 4)        This right extends only to employees and does not extend to non-employees (such as union organizers).

While the Board acknowledged that employers may continue to monitor computer and email systems for legitimate reasons, it recognized such monitoring could infringe upon Section 7 rights if the employer changes its monitoring practices when there is union or other protected, concerted activity.  Ultimately, the Board concluded that such matters would be decided on a case-by-case basis using the same standards that apply to traditional allegations of surveillance.

Employers, including those that currently do not have any unionized employees, should evaluate their email use policies in light of this ruling. 

2.        Election Rule

On December 15, 2014, the Board issued a final rule modifying its Representation Case procedures.  An NLRB summary of the rule is available at http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-representation-case-procedures-fact-sheet.  This rule is frequently referred to as the “quickie election rule” because it significantly reduces the time between the filing of a representation petition and an election.  Some of the significant changes include:

1)        The non-petitioning party (in initial representation elections, the employer) must now respond to the election petition with a Statement of Position identifying its issues with the petition and the proposed unit before the pre-election hearing, which will be scheduled for 8 days after a hearing notice is served.  Any issues the employer intends to raise at the hearing must be addressed  in the Statement of Position. Previously, the employer could wait until the hearing to raise any issues.

2)        The employer must now provide a list of prospective voters, with job classifications, shifts and work locations, with its Statement of Position.  Previously, this information was provided after an election was directed or agreed upon.

3)        Only those issues necessary to determine whether an election should be held may be litigated in a pre-election hearing.  Issues of voter eligibility affecting a small percentage of the voting unit may now be deferred to the post-election hearing if such determination will not impact whether an election is held.

4)        Post-hearing briefs will now only be allowed at the discretion of the Regional Director, and hearing on post-election issues will be held 14 days after objections are filed.

5)        Elections will no longer be automatically stayed to allow parties to request review of the Regional Director’s decision and direction of election.

The net effect of these changes is that an election will be held much sooner than under the existing procedures and this accelerated period will impact an employer’s ability to contest elections successfully.

Please do not hesitate to contact any of our attorneys if you have any questions on compliance with the Board’s ruling in Purple Communications or for more information on the Board’s new election procedures rule.