Game Changers From the NLRB

Document created by 1002043 on Dec 18, 2014Last modified by 1002043 on Mar 10, 2017
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A recent decision and a final rule issued by the National Labor Relations Board (NLRB) will no doubt have major impacts on the playing field of union elections. 


Use of company email for union organizing


The NLRB recently ruled that employers could not prohibit employees from using their company’s email to communicate and engage in union organizing on their own time. This 3-to-2 ruling overturned a 2007 decision that had forbidden such use of email. The current Board’s majority decision was based upon its reasoning that technology had transformed daily habits. “The workplace is ‘uniquely appropriate’ and ‘the natural gathering place’ for such communications,” the Board wrote, “and the use of email as a common form of workplace communication has expanded dramatically in recent years.”


An exception by the Board regarding this issue would be only if an employer could prove that an overall ban on non-work use of email was necessary for productivity or discipline (this would be difficult for an employer to prove). The Board said that as long as employees were allowed to send non-work-related emails, then employers could not bar the messages from being sent about union organizing.


Ambush elections


The NLRB has also issued its “Ambush Election” final rule; it appeared in the December 15, 2014 edition of the Federal Register.  The rule is very similar to the one that went into effect in 2012 but was invalidated by the courts because it was promulgated without the required quorum of three Board members.  This rule, which is being praised by organized labor, will speed up the union election process thus preventing employers from having ample time to tell employees “their side of the story.”  It will no doubt assist organized labor in union organizing. Although the rule will take effect on April 14, 2015, it is expected that there will be significant litigation challenging the rule well in advance of the effective date.  Some of the new provisions of this new rule are are as follows:


  • The employer must provide a list of prospective voters with their job classifications, shifts, and work locations to the NLRB's regional office and other parties generally one business day before the pre-election hearing (currently the employer is not required to share a list of prospective voters until after the regional director directs an election or approves an election agreement).
  • The voter list will include phone numbers and email addresses-if available to the employer--the employer must submit the list within 2 business days of the regional director's approval of an election agreement or decision directing an election (currently the voter list only includes names and home addresses and the employer is to submit the list within 7 days of the approval of an election agreement or the regional director's decision directing an election).


For a complete view of the current and the new rule, go to the comparison table published by the NLRB.  To access this rule in its entirety, go to final ruleCAI will keep you informed of any future developments regarding this important labor relations issues.