New NLRB Developments
As 2014 draws to a close, we wanted to provide you with a brief overview of what the National Labor Relations Board (NLRB) has been "up to" lately.
1. Lauren McFerran was confirmed to the Board last week. She is currently the chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP Committee). This will leave a 3-2 Democrat majority on the Board even after Republicans take control of both houses of Congress in 2015.
2. The NLRB has just announced that the quickie election rules it proposed back in 2011 (and which previously were ruled illegal based on a technicality by the D.C. Circuit Court of Appeals back in 2012) will be implemented effective April 14, 2015.
These new rules will greatly enhance a union's ability to organize and curtail employers' ability to campaign against union organizing efforts. The new rules, especially when coupled with the NLRB's recent recognition of micro-bargaining units, will allow unions to control the timing of the election process so that they are held when an employer is most vulnerable (i.e., during the employer's busy season or times of business or operational transition, etc.).
Some of you may remember that these quickie election rules were one of the major components of the Employee Free Choice Act (EFCA) that President Obama unsuccessfully tried to get passed by Congress when he first was elected. The NLRB has circumvented Congress by issuing these rules using its rule-making authority as a federal administrative agency.
Specifically, the new election rules will: - Allow union elections to be scheduled from 10 to 21 days after a petition is filed (currently it takes 40 to 50 days or more to hold an election, so, going forward, unprepared employers will only have 2-3 weeks, rather than a month or more, to educate their employees on the downsides of unionization).
- Defer issues regarding "who is part of the potential bargaining unit and therefore who should be permitted to vote" until after the election, absent unusual circumstances, again, making it difficult for employees to make an informed choice and for employers to know who to focus on during an election campaign.
- Revise the pre-election hearing procedures by scheduling a hearing just 8 days after the petition is filed in which the employer must present a comprehensive analysis of the legal issues it wishes to address prior to the election.
- Provide unions with two separate lists of employees: (1) a list of all employees in the challenged, petitioned-for bargaining unit; and (2) a list of all employees in the unit the employer alleges is appropriate. Then, within two business days after the unit issue is decided, a list including each employee's name, home address, telephone number, email address, work location, shift and job classification must be provided to the union electronically.
These new election procedures make it critical for employers to maintain a constant state of vigilance in order to keep from being ambushed by a union. As there will be little time to prepare or campaign against a union once a petition is filed after these new rules go into effect in 2015.
3. In the only pro-employer development summarized in this alert, Sodexo America LLC, the Board upheld an employer's "no-access to off-duty employees" policy, saying it did not violate the National Labor Relations Act (NLRA) because it set reasonable exceptions that did not tend to interfere with employees' Section 7 rights by discriminatorily precluding union activity.
Specifically, the policy in question provided that
Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. 1. An off-duty employee is defined as an employee who has completed his/her assigned shift. 2. Hospital-related business is defined as the pursuit of the employee's normal duties or duties as specifically directed by management. 3. Any employee who violates this policy will be subject to disciplinary action.
Interestingly, this was a reversal of the Board's July 2012 decision, which held that this policy did violate the NLRA.
4. In another (NOT-so-employer-friendly) reversal of precedent, the Board decided in Purple Communications that employees must be allowed to use their employer's e-mail system to engage in union organizing activities and other concerted activities relating to the terms and conditions of their employment which are protected under Section 7 of the NLRA if they (a) otherwise have been granted access to the employer's system and (b) are permitted to engage in other non-work-related communications on the employer's system.
Employers can still prohibit such activities during work time if they prohibit all other non-work-related uses during work time and circumstances make such an absolute ban necessary to maintain production or discipline.
The Board also noted that an employer may apply other uniform and consistently-enforced controls over its e-mail system even during employee breaks and other off-duty time "to the extent such controls are necessary to maintain production and discipline." However, the Board did not elaborate as to what "special circumstances" it would recognize as sufficient to permit the exercise of such control. Since most employers do not engage in constant monitoring of employee e-mail activity, it is doubtful they could credibly argue a recognizable threat to their production or ability to maintain discipline based on employees being able to send non-work-related e-mails during breaks, etc. which would support such a rule if it was challenged to the Board as having a chilling effect on employee Section 7 rights.
5. Following this same pro-union line of thought, in ConAgra Foods, Inc., the Board recognized a difference in employee "solicitation" on behalf of a union on work time and employees merely "discussing" a union. The Board held that while employers still can prohibit employee "solicitation" on behalf of a union during work time, they cannot prohibit "the mere mention" or a "brief discussion" about a union, unless they have a rule prohibiting "any non-work-related communication" during work. Such a rule would be unworkable and impossible to enforce for most employers.
Coming Attractions. . .
It is anticipated that these and other labor-related developments will be litigated in federal court and/or are likely to be the subject of legislation in the Republican-controlled Congress in 2015.
There is also discussion about amending the NLRA to add a sixth member to the Board, so as to give labor and management equal representation and to try to make the Board an enforcer rather than a creator of federal labor law.
Particularly in light of the quickie election rules described in item 2 above, if you have not conducted union avoidance training within the past 12 months and/or if you do not have a union petition response plan, please contact Bill Trumpeter or any other member of our Labor & Employment Practice Group for assistance in these areas. Otherwise, you may be facing a very Un-happy New Year in the event of an unexpected union election.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.
