NLRB deals unions two big wins
New decision leaves unclear whether employers can monitor email.
The National Labor and Relations Board recently announced two decisions that could give union organizers more leverage.
First, in the case of Purple Communications, a company that develops communications solutions and services for deaf and hard-of-hearing individuals and businesses, the NLRB granted employees the right to use employer email systems to voice concerns about their employer, including as part of a union organizing effort.
John Lichtenberg, attorney at Rhoades McKee, said Purple Communications had an email policy against using work email for non-business-related communications. He noted the policy is similar to those of many other businesses operating across the country.
“The company had an email policy that said you can’t use your email for non-business purposes and you can’t use it to communicate with folks who don’t have a business relationship with the company,” Lichtenberg explained.
The complaint about the policy was that it restricted employees’ Section 7 rights, which include the right to discussions about wages, benefits, and terms and conditions of employment.
“That (policy) effectively foreclosed communications between employees using the email system (to talk) about the union,” Lichtenberg said.
Almost a decade ago, the NLRB heard another case involving a similar email policy. At that time, the NLRB decided the employer had a right to restrict non-business use of email by employees based on the fact that the email system and the computers are the property of the employer, and an employer has a right to control the use of its property.
Lichtenberg said the NLRB’s decision this time around reversed that opinion. He said the basis for its change of heart is today email is seen as the equivalent of standing around the water cooler and chatting, while 10 years ago it hadn’t reached that point.
Employers and their attorneys are concerned with the potential consequences of the NLRB’s decision.
“It affects employers potentially a lot,” Lichtenberg said.
One example he gave is whether an employer has the right to monitor email under any circumstances. He noted email monitoring might be one method used to investigate harassment claims, but based on the NLRB’s decision, it isn’t clear if email monitoring would be legal, and that could hinder an employer’s legal obligation to investigate a harassment complaint.
“When I’m in there looking at your inbox, I am seeing all sorts of other things, including that you are in the thick of an organizing campaign to bring a union in,” he explained. “That amounts, arguably, to surveillance activity, which is prohibited by the National Labor Relations Act.
“The fact I’ve told you I’m going to be monitoring your email may cause you to think you shouldn’t use your email to do union organizing, and I have now chilled your exercise of your right to do this. It poses that question of, ‘Can an employer monitor email anymore?’
“We don’t know that is what is going to happen, but there are a lot of lawyers looking at this trying to figure out how to solve that problem.”
Unions won another victory with the NLRB’s revision of its rules governing the process by which employees decide whether to be represented by a union.
“The way the process works is employees and union organizers have to get a minimum showing of interest in having a union represent the employee group. A minimum of 40 percent of the employees who would be represented have to sign cards, otherwise they don’t petition,” Lichtenberg explained.
He said getting the required show of support typically takes months to accomplish.
In an effort to gain support, Lichtenberg said union organizers are trying to sell employees on benefits of union representation.
“There are a lot of reasons employees are motivated to want a union to come in, and the union will play to those,” he said.
Because the process is conducted in secret, employers don’t have an opportunity to counter those arguments and run a campaign against union organizing until it is made aware of the organizing efforts — typically, when the union petition is filed.
Lichtenberg said typically an election was scheduled six weeks out from the date the petition is filed, giving employers time to counter the union’s arguments and correct any misinformation.
“You at least had six weeks to communicate with the employees,” he said.
Under the revised rules, elections will be scheduled within three weeks or less of the petition filing date.
“That makes it almost impossible for the employer to be able to mount any kind of effective campaign that educates the employees on why they shouldn’t unionize,” Lichtenberg said.
“Unions have advocated for this change in rule for a long time. The reason is, it will make it much more likely unions will succeed because the employer won’t be able to effectively communicate its side to the employees.”