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NLRB's "Holiday Gifts" to Unions

Last week, the National Labor Relations Board (“NLRB”) took official action to aid union organizing efforts and other employee concerted actions. In Purple Communications Inc., a divided NLRB held that workers have the right to use their employers' email system during non-working time for non-business purposes, including union organizing, overruling a decision to the contrary in 2007.

The NLRB described its decision as “carefully limited,” stating that it applied only to employees who have been given access to an employer's email system. In an apparent nod to security concerns raised by two dissenting Board members, the majority decision stated that an employer could justify a complete ban on the non-work use of email if it is necessary to protect the system from damage due to excessive use, and the employer could apply uniform and consistently-enforced controls on the system to ensure its proper functioning. Nevertheless, the Board noted that such “special circumstances,” which the employer would have the burden of proving, would be rare.

One of the dissenting NLRB members stated that the availability of other forms of electronic communications, including social media sites such as Facebook® and Twitter®, belied the majority's conclusion that limiting an employer's email system to business purposes amounts to an unreasonable obstacle to organizing efforts. Another NLRB member dissented, disputing the majority's characterization of the decision as limited, stating that the new standard violated the First Amendment if it would force employers to pay for speech with which they disagreed.

In a second, separate action aiding union organizing efforts, the NLRB also finalized a rule to streamline the union election process by, among other things, reducing the amount of time – some estimate by two to three weeks – employers have to respond to an election petition. The new rule also would require employers to post and distribute to employees a Board notice informing employees of the filing of the election petition and to provide the union with the telephone numbers and email addresses, if available, of eligible voters. The new rule provides the Regional Director with enhanced discretion in determining the date of the election and limiting pre-election hearings and challenges.

The new election rule is expected to draw legal challenges from employer groups, but is otherwise scheduled to take effect on April 14, 2015. Employers should consider renewing proactive efforts similar to those taken in response to Congress' consideration of the Employee Free Choice Act in 2009.

If you have any questions about the new rules on employee access to email systems or the election procedure, please contact your Elarbee Thompson attorney or respond to this email.

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