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Twin NLRB Rulings Are A Big Christmas Present For Labor (Read More…)

By Daniel Fisher December 12, 2014

A pair of controversial rulings by the National Labor Relations Board have employers crying foul as the Democrat-controlled agency has made it dramatically easier for unions to organize employees — using their employers’ own e-mail systems — before companies have a chance to react.

The NLRB today released its long-awaited rules on “quickie elections,” shortening the time between when a union files a petition and when employees vote to less than 30 days. Combined with yesterday’s ruling ordering companies to make their internal e-mail systems available to employees for union organizing efforts and an earlier ruling allowing for smaller bargaining units, the rulings will make it harder and more expensive for companies to resist union organizing drives.

“When you combine ease of communications with the very small bargaining units and you combine all that with a 20-day election cycle, they have given organized labor its biggest Christmas gift since the National Labor Relations Act in 1935,” said Michael Lotito, a shareholder with Littler Mendelson in San Francisco who represents employers in labor matters.


Another little-noticed provision in today’s rules instructs the agency to devise methods for accepting electronically signed union authorization cards from employees. While not precisely equivalent to the “card check” proposal for getting rid of secret ballots in union elections that was defeated early in the Obama administration, when combined with yesterday’s ruling in Purple Communications, it will allow unions to swiftly disseminate cards to employees using a company’s own e-mail system.

“This is kind of insult to injury from the employer’s perspective and I don’t think people have picked up on that,” Lotito told me.

In the Purple Communications decision, the NLRB said the rise of new technology meant employees should no longer rely only on face-to-face communications such as the stereotypical water-cooler talk to communicate with each other about working conditions and unionization. It ordered companies to allow such communications over their e-mail systems in most circumstances, adding only the proviso that employees do it during non-working hours. The decision drew a strong dissent from the NLRB’s two Republican members, Philip A. Miscimarra and Harry I. Johnson III, who also dissented from today’s decision.

The dissenters, along with employer groups, complained that employees already have plenty of options for communicating with each other, including Facebook, private e-mail and phones, without requiring the use of an employer’s computer servers. While the NLRB majority held that employees can only use company e-mail when they are off the clock, such a restriction will be difficult to enforce without eliminating access to company e-mail entirely.

“It’s one thing to use a computer you paid for at home to go on Facebook and gripe about your supervisor,” said Steven Bernstein, a partner with Fisher & Phillips in Tampa who also represents employers in labor matters. “It is another, though, to take your computer on your premises to do something I’ve not asked you to.”
The new rule on company e-mail will likely spawn lots of costly litigation as unions seek to prevent employers from monitoring any employee communications that might be construed as concerted action to affect workplace conditions. An employee who hits “send all” on an e-mail complaining about wages, for example, likely cannot be disciplined unless the communication crosses a vague line into harassment or slander, he said.

Longstanding labor regulations also prohibit employers from engaging in surveillance, such as following workers to see if they are meeting with union reps.

“Can a company be accused of surveillance solely by monitoring e-mails” flowing over its own network? he asked. “That’s never been tested before.”

The NLRB seemed to take different sides on this issue in the two announcements this week. In the Purple Communications decision, it said it was changing its position on employer e-mail use because the previous rules focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.” The fact that employees can also communicate via other means including social media is irrelevant, the majority said.

But in today’s 733-page Final Rule, the majority tightened to 72 hours the deadline for employers to turn over to union organizers employees’ personal e-mail addresses and cell phone numbers. It justified this “because the use of telephones to convey information orally and via texting is an integral part of the communications evolution that has taken place in our country.”

That drew a strong complaint from the dissenters, who said the new rule doesn’t even allow employees to opt out of receiving union communications on their personal devices.


The Final Rule’s justification for these expanded disclosure requirements (the importance of personal email and cell phones to protected concerted activity in the workplace, given the “prevalence” at “work” of “cell phones,” which have become “the preferred mode of communication for many young people”) is irreconcilable with Purple Communications …where the Board majority insists that “social media, texting, and personal email accounts” are not even “germane” because they “simply do not serve to facilitate communication among members of a particular workforce.”

The combined effect of the NLRB’s recent decisions will be to make it much easier for unions to stealthily organize groups of employees and then announce petitions for unionization, leaving companies as little as 10 or 14 days to prepare a response. The tighter deadlines mean it will be difficult for companies to sort out eligible employees from non-eligible managers as well as to prepare a legal challenge to bargaining units it believes are too small and will Balkanize the work force, such as in the decision earlier this year to allow United Food and Commercial Workers union to organize 41 workers in the cosmetics department of a single Macy’s store in Massachusetts

One guaranteed result: Higher costs. Larger employers “will have to prepare rapid-response teams to go out in the field when petitions are filed,” Lotito said. They will have to determine, in advance, eligible and ineligible employees and have their legal arguments prepared to fight union attempts to pick off small groups of workers.

“The way this will work in practice is unions will collect cards from workers at 50 to 60 locations of a large employer, then go to them and say they will file 100 petitions on Monday unless they agree to neutrality (on whether to organize) and card check,” Lotito said.

Most elections now are held within 42 days of a petition, he said, and the new rule “will cut that in half.”

And the NLRB isn’t done. Still expected, perhaps as early as next week, are rulings on whether college athletes can unionize and the Browning Ferris case over so-called “joint employment” that could force franchisors like McDonalds to negotiate with unions seeking to represent workers at independently owned franchise restaurants.

 

Posted by Admin on 12/12 at 03:24 PM
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