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Labor & Collective Bargaining

Board Adopts Presumption That Employees Can Use Employer’s Email System to Engage in Protected Activity

In a controversial but not unexpected decision, reversing precedent, a majority of the National Labor Relations Board held that absent special circumstances that justify specific restrictions employers must permit employees who have been provided access to their employer’s email system to use email for statutorily protected communications on their nonworking time  Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014). The decision applies retroactively.

Facts

The Respondent, Purple Communications, provides sign-language interpretation services. Its employees provide two-way, real time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters work at 16 call centers and all are assigned and use on a daily basis individual email accounts on Respondent’s system. Employees can access their email accounts at their workstations, in break areas, and on their personal computers and smart phones.

In the fall of 2012, the Union (Communication Workers of America) filed a petition to represent the interpreters, which resulted in Board elections at seven of Respondent’s call centers. The Union filed objections to some of the results and challenged Respondent’s electronic communications policy, which strictly prohibited employees from using the computer, internet, voicemail and email systems, and other Company equipment to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and to send “uninvited email of a personal nature.”  According to the Union, the policy interfered with the interpreters’ freedom of choice in two of the elections. The Union also filed an unfair labor practice regarding the policy, which led to the issuance of a complaint and the case at issue.

The NLRB administrative law judge, findingthat Respondent’s electronic communications policy was lawful under the Board’s decision in Register Guard, 351 NLRB 1110 (2007), dismissed the complaint, and overruled the Union’s related election objections. The Board’s Register Guard decision provides that employers may completely prohibit employees from using the employer’s email system for Section 7 purposes, even if employees are otherwise given access to the system, without any obligation to demonstrate any business justification as long as the employer’s ban is not applied in a discriminatory manner.  After both parties filed exceptions to the ALJ’s decision, the Board issued a notice and invitation to the parties and interested amici curiae to file a brief on several questions including whether the Board should reconsider its conclusion in Register Guard and what standard should apply if the Board overruled Register Guard.  

Register Guard Overruled

In Purple Communications, the Board overruled Register Guard and set forth a new rule – a presumption that employees who have been provided access to the employer’s email system are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment during nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions. To demonstrate special circumstances, an employer must articulate the specific business interest at issue and show how the interest supports a restriction on email usage during nonworking time.

According to the Board majority, the analysis in Register Guard focused too much on employer property rights and too little on the importance of email as a means of workplace communication, did not adequately protect employees’ Section 7 rights under the Act, and failed to “adapt the Act to the changing patterns of industrial life.”

The majority found the Register Guard Board’s reliance on the notion that email systems are equivalent to other communications-related equipment (such as bulletin boards, copy machines, public address systems, and telephones) which an employer can limit use of for work purposes misplaced.  Given the prevalence of email communication in the workplace, this analysis placed too much emphasis on equipment and not enough on an employee’s right to communicate regarding self-organization at the jobsite.  Electronic communication is effectively a new “natural gathering place” and a forum in which coworkers who share “common interests” will “seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” Accordingly, the Board found a significant difference between an employer-owned email system and an employer’s bricks and mortar facility making the Register Guard Board’s analogy to employer-owned  equipment and emphasis on employer property rights misplaced.

The Board also reasoned that email communication is not a solicitation or a distribution per se. Rather, an email system is merely a forum for communication and the content of the email may constitute a solicitation, distribution, or neither a solicitation nor distribution, but communication that is still protected by the Act.  Thus, email systems cannot be characterized as a work or non-work area, but should be considered as mixed-use areas in which work-area restrictions on literature distribution will generally not apply. Thus, the Board ultimately concluded that the Register Guard analysis was not appropriate and should be overruled to ensure the Board adapts the “Act to the changing patterns of industrial life.”

The Board noted that its decision in Purple Communications is carefully limited and seeks to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers.  First, the Board noted that the decision applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access.  Second, an employer may justify a total ban on non-work use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.  The Board noted, however, that “it will be the rare case where special circumstances justify a total ban on non-work email use by employees.” Further, where special circumstances do not justify a total ban, employers may still apply uniform and consistently enforced controls when necessary to maintain production and discipline. Third, the decision does not address email access by nonemployees, nor does it apply to any other type of electronic communication systems.

Dissents

Member Miscimarra dissented from the decision on the grounds the Board should avoid disrupting long standing precedent and strive to accommodate any conflict between employer property rights and employee rights to engage in protected activity.  The presumption established in Purple Communications fails to accomplish those goals.  Furthermore, the dissent stated that the majority decision presumes that limiting email system use constitutes an impediment to self-organization, fails to accommodate an employer’s property rights associated with its computer resources, adversely affects other legal requirements imposed by the Act, and replaces an easily understood rule with a presumption unless unspecified “special circumstances” exist.

Member Johnson also dissented from the decision, in part, based on his view that email is different than physical space and the majority decision undermines an employer’s right to own and operate an email network for business purposes. Unlike physical space, email communication is unlimited, can be directed to large audiences regardless of the wishes of some or all of the audience, cannot be separated in terms of working or non-working areas, and is impossible to exit if working on the system.  Conversations taking place at the water cooler or in person do not persist beyond the conversations themselves.  Email conversations, on the other hand, are a double edged sword in relation to productivity because there are no definite bounds in space, time, or audience which necessarily costs employers money and distracts from the employer’s business.

Employer Actions

In response to this decision, all employers must review their electronic communications, bring your own device (BYOD) and social media policies and practices relating to employee usage, notably where there is a complete ban on personal use.  Policies promulgated pursuant to Register Guard which prohibited all personal e-mail usage or personal email usage for Section 7 purposes or email usage during non-working time must be modified.  Note that an unlawful policy, even if not enforced, can result in the overturning of an election.  Further, while employers still should reserve the right to monitor email usage, before exercising such right, employers must consider potential NLRB charges based on surveillance if there is known union activity and must be wary of disciplinary actions commencing shortly after learning of union activity through monitoring.  Of course, this policy review cannot be accomplished in a vacuum and also should include non-NLRA related considerations such as the impact of allowing email on non-working time on potential wage and hour claims and privacy issues, including the monitoring the activity itself and use of these communications for disciplinary or litigation purposes.

NLRB Issues Final “Quickie” Election Rule

The National Labor Relations Board has adopted a final rule amending its representation–case procedures. The rule will be published in the Federal Register on December 15, and will take effect on April 14, 2015. The final rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.

Chairman Pearce said of the new rule, “I am heartened that the Board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Act. Simplifying and streamlining the process will result in improvements for all parties. With these changes, the Board strives to ensure that its representation process remains a model of fairness and efficiency for all.”

The final rule likely is identical to the proposed rule which was published in the Federal Register on February 6, 2014 and discussed here.  A detailed analysis of the final rule and its implications will be forthcoming.

NLRB Requires Employers to Let Employees Use Workplace Email Systems for Union and Concerted Activities, Overruling 2007 Decision

In a landmark and not-unexpected ruling, the National Labor Relations Board decided today to require employers to allow their employees to use company email systems for Section 7 (union organizing and protected concerted activity) purposes during nonworking time.  Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). The decision overrules the Board’s 2007 Register Guard decision (351 NLRB 1110), in which the NLRB held employers had the right to ban all employee personal use of employer email systems.

The latest ruling does not require employers to grant email access to employees who had not previously been given access. The ruling also allows employers to prove that special circumstances exist for a total ban on such access to maintain production and discipline.

A detailed analysis of the decision and its implications will be forthcoming.

Senate Confirms Lauren McFerran as Member of National Labor Relations Board

On December 8, the Senate confirmed Lauren McFerran (D) as a member of the National Labor Relations Board by a vote of 54-40, along party lines. Ms.  McFerran will replace Democrat Nancy Schiffer, whose appointment is set to expire December 16, 2014.  Employers should expect that her views will be similar to Member Schiffer’s pro-labor stance. Ms. McFerran’s appointment to the NLRB ensures the Board will retain its 3-2 Democratic majority after the Republicans take control of the Congress in 2015.

Ms. McFerran has been the Chief Counsel for the Senate Committee on Health, Education, Labor and Pensions since 2010.  Prior to that, she was Senior Labor Counsel for Senator Tom Harkin (D-IA) and Senator Ted Kennedy (D-MA).  Ms. McFerran also was an Associate at a Washington, D.C., law firm specializing in the representation of public and private sector labor organizations and related institutions.

Substantial Doubt Cast on Imminence of “Quickie” Election Rule

Despite widespread expectations that the National Labor Relations Board would issue its final revised “quickie” election rules prior to the expiration of NLRB Member Nancy Schiffer’s term on December 16, 2014 (to avoid being frustrated by a 2-2 Republican-Democrat split after her departure), recent events suggest the Board might not be so eager to issue the final rule.  (See our previous post, What the November Election May Mean to the “Quickie” Election Rule, for more information.)

First, the Obama Administration withdrew its controversial nomination of Sharon Block to replace Member Schiffer, substituting Lauren McFerran (a Democrat), currently chief labor counsel for the Senate Health, Education, Labor and Pensions Committee.  The Senate promptly held a hearing on Ms. McFerran’s nomination, which by all accounts was cordial.  Committee approval (by the very Committee that presently employs Ms. McFerran) just occurred, so it is likely that full Senate confirmation will come before the current Congressional term ends (on or about December 9th).  Thus, concerns about a looming Board impasse have been alleviated.

Second, the latest Regulatory Information Service Center (RISC) semi-annual Unified Agenda of federal agency actions states the probable issuance of the long-awaited NLRB final election rule is “To Be Determined.”

The RISC Unified Agenda manual directs agencies to divulge scheduled or “projected” dates of regulatory actions by at least the month and year.  Where the agency has indicated “no estimated future date” for a particular action, the Agenda will read “To Be Determined.”

How is the public to interpret “To Be Determined”?  Is issuance imminent or to be delayed?  Is the final rule fully drafted (as many have said) or is it still being revised?  Will it be issued at all?

Essentially, we have another round of Washington tea-leaf reading.

The practical imperative (avoidance of an ideological standoff on the Board) for immediate issuance of the final rule has receded.  However, many believe the rule will be published in the next few weeks.  One could argue that the Board’s ambiguous statement as to timing suggests it may be hedging its bets politically, concerned about Congressional reprisals.  It is hard to tell.  High-ranking Republicans have hinted that the incoming Congress may exercise its power of the purse to prevent NLRB application of the new rule.  It may be that the longer the Board goes without issuing the new rule, the less likely it will issue at all.

Credible arguments exist to support all eventualities. Keep reading your Labor & Collective Bargaining blog for the latest news.

 

Senate Labor Committee Recommends Senate Confirmation of Democrat McFerran to the NLRB

The Senate Committee on Health, Education, Labor and Pensions has voted to recommend Senate confirmation of Democrat Lauren McFerran, President Barack Obama’s recent nominee  to the National Labor Relations Board.  During the December 2 vote, McFerran’s nomination was supported by the 12 Democrats on the Committee and opposed by all 10 Republicans. According to Senate Majority Leader Harry Reid, the Senate is expected to vote on the nomination within the “next couple of days,” and thus, before the GOP takes control of the Senate in 2015.

McFerran has been the Chief Labor Counsel for the Committee since 2010.  She also was Senior Labor Counsel for Senator Tom Harkin (D-IA) and former Senator Ted Kennedy (D-MA).  Prior to that, she was an associate at a Washington, D.C. law firm specializing in the representation of public- and private-sector labor organizations and related institutions.

If confirmed by the full Senate, McFerran will replace Nancy J. Schiffer (D), whose appointment is set to expire December 16, 2014.  It is worth noting that McFerran’s present position was previously held by former Board Member Sharon Block, whose association with Kennedy was the reason the GOP members initially opposed  her nomination. Employers should expect that her views will be similar to Member Schiffer’s pro-labor outlook.

District Court Orders NLRB Regional Director to Pay Over $55,000 in Attorneys’ Fees to Employer in 10(j) Fight

A U.S. District Court Judge in Arizona has ordered the National Labor Relations Board’s Regional Director in Phoenix, acting on behalf of the Board, to pay $55,000 in attorneys’ fees to an employer sued for a temporary injunction over the firing of four recently hired employees, despite awarding the Regional Director much of the relief he sought in his application for relief under Section 10(j) of the National Labor Relations Act.

The case involved a union organizing campaign at a recently acquired company.  After purchasing the company, the new owner contacted the Department of Homeland Security and was informed that he could treat all employees as new hires and, therefore, use E-Verify to verify their legal authorization to work in the U.S., as is required by Arizona law.  When he fired four of his “new hires,” the General Counsel alleged that the terminations were unlawful because they were motivated by the employees’ support for the union.  The Regional Director also filed an action under Section 10(j) of Labor-Management Relations Act in federal district court in Arizona against the employer seeking , among other things,  the immediate reinstatement of the four terminated employees pending a final determination by the NLRB in the underlying unfair labor practice proceeding.

The Court granted the Regional Director’s application, in part, noting that, “Employees get the message when their employer fires the union sympathizers among them.”  However, the Court would not agree to the Regional Director’s demand that the discharged employees be reinstated and be exempt from the employer’s lawful and non-discriminatory use of the federal E-Verify system.  Significantly, the employer had offered to reinstate the four employees conditioned upon their successful completion of the E-Verify.  The Court found the Regional Director’s insistence that the employees be retained even if they could not be confirmed as legally authorized to work under E-Verify was contrary to the law.

After receiving the Court’s ruling, the employer filed a motion for an award of attorneys’ fees based on legal costs the employer had incurred in resisting the Regional Director’s insistence on the employees’ unconditional rehire.  The Court granted the employer’s request and awarded it attorneys’ fees in the amount of $55,739.

This case should serve as a reminder to Regional Directors and the NLRB’s General Counsel that despite broad prosecutorial discretion, they cannot    overreach during unfair labor practice charge administrative proceedings, related court proceedings and settlement negotiations.  Although it is rare for a court to award attorneys’ fees as happened in this case, employers should be aware that they have the option to request them in egregious cases and, perhaps, to remind Board officials of that in appropriate circumstances.

NLRB’s Johnson and Griffin Review Pitfalls Associated With Employer Monitoring of Social Media

Officials of the National Labor Relations Board recently weighed in on the legal risks employers bear under the National Labor Relations Act when monitoring employee/applicant use of social media.

During a panel discussion in Pennsylvania [as reported in Law360 (November 12, 2014)], Board Member Harry Johnson and NLRB General Counsel Richard Griffin confirmed what may be obvious to many: evolving technological media does not change long-standing prohibitions under the NLRA.  Employers who, while monitoring social media, discover and then consider  an applicant’s union sentiments or activity, or  other protected concerted activity, in deciding whether to offer that person a job, may violate the Act.

While researching applicants through social media does not per se constitute a violation of the NLRA, the panelists cautioned employers that doing so may pose significant risk under the Act (and a host of other laws).   If an unsuccessful applicant can establish that a prospective employer had knowledge of the applicant’s union/protected concerted activity through social media, the prospective employer may face liability if it cannot show that it would have taken the same action (not hiring the applicant) regardless of its knowledge of the activity.  And, given the Board’s liberal imputation-of-knowledge standard, employers cannot expect this NLRB to worry long over imputing knowledge from the supervisor who learned of the protected conduct  to the decision-making supervisor who did  not.  In most cases, the Board will impute one supervisor’s knowledge about an applicant to the decision-maker.

Johnson also addressed the risks employers face in monitoring the social media activity of existing employees.  Most social media comments about employers are negative, and when that activity is joined by other employees, it can be considered protected under the NLRA.  Any subsequent adverse action against the employees engaging in it can violate the NLRA.

Unions Winning More Elections, but Facing Diminishing Returns

According to a Bloomberg BNA report, unions won more representation elections, with a higher win rate, in initial NLRB-monitored representation elections in the first half of 2014 compared to the same period in 2013, but the number of newly organized employees fell drastically, and unions have been losing decertification elections more often.

Unions won 8.6 percent more elections in the first six months of 2014 compared to the same period in 2013 (428 to 465). Unions were more successful not only at increasing the absolute number of representation elections held and won, but also their win rate improved 3.7 percent, to 69.2 percent (428 out of 653 in the first half of 2013, to 465 out of 671 in the first half of 2014).

The Teamsters were the most active of all unions based on the number of elections in which they participated, but the Service Employees International Union both won more elections and organized more employees than the Teamsters.  The Machinists Union, however, had the highest win rate of all unions, winning 90.2 percent of its elections, although it was involved in far fewer elections than either the Teamsters or the SEIU.

The improvement unions made in the number of NLRB representation elections won and their win rate was undermined by a significant decrease in the number of new members unions added through those elections—the number of workers organized as a result of those elections fell precipitously.  In the first half of 2013, 65,861 new workers were unionized through NLRB elections, but in the first half of 2014, only 25,754 new workers were unionized—a 61 percent decrease.  The smaller number of organized employees (as well as the increase in the unions’ winning percentage) may reflect an increase in the number of “micro-units” sought by unions.  Micro-units are easier to organize because there are fewer employees from whom the union must get authorization cards, and the peer pressure to vote in favor of the union in the subsequent election is higher. (More on micro-units here.)

In addition, unions lost substantially more decertification elections (elections in which employees vote on whether to remove the union as their representative) in the first half of 2014 compared to the same period in 2013.  In the first six months of 2013, unions lost 59.6 percent of decertification elections, but in the first half of 2014, unions lost 70.1 percent of the elections.

This data presents a mixed bag for employers.  On the one hand, unions are winning more often when they are able to collect enough authorization cards to force an NLRB election.  On the other hand, far fewer employees are actually being organized, and unions are being decertified at a greater clip. The bottom line: the best union-avoidance strategy is to ensure your employees do not feel the need to sign a union authorization card.

President Obama Withdraws NLRB Nominee

President Barack Obama reportedly has withdrawn former-National Labor Relations Board member Sharon Block’s nomination to the NLRB to replace Nancy Schiffer, whose term expires on December 16, 2014.  Obama instead will nominate Lauren McFerran, chief labor counsel for the Senate Health, Education, Labor and Pensions Committee.

Block’s renomination earlier this year has met with significant Republican opposition — she was one of the three NLRB members whose January 2012 recess appointments were held to be invalid in the Supreme Court’s Noel Canning decision.   Block left the NLRB in August 2013.

It is unclear whether McFerran’s nomination will be taken up by the Senate before the 114th Congress is seated in 2015 with a Republican majority. The Democrats have the Senate votes to confirm a nominee until January 1, 2015.  However, commenters say the White House will reserve that strategy for more significant nominations, perhaps for Attorney General.   (Note that the GOP no longer has the filibuster rule to rely on to stop the majority from confirming a nomination.)

McFerran will need to be confirmed by the time Schiffer leaves the Board or there will be a 2-2 ideological tie.  It has been suggested that the Democrats will move quickly to confirm McFerran, even though the White House did not want to do that for Block.   The change in nominees may be something of an olive branch to the GOP, which has strenuously opposed Block, ostensibly because she did not resign when her recess appointment was called into doubt.

Since she is presently Chief Counsel for the Democratic-controlled HELP Committee, it is not a given that that committee will report favorably on her nomination once a Republican majority is seated in 2015.