The National Labor Relations Board dramatically shifted the workplace landscape last week with two landmark decisions – one accelerating the timing of union representation elections and a second permitting employees to use company email accounts on their own time to discuss organizing.
The rule on expedited union elections had been sought for years by organized labor to limit the ability of companies to respond to organizing efforts. The measure eliminates a previously-required 25-day period between the time an election is ordered and the election itself and curtails employers’ ability to appeal eligibility and other issues prior to a union representation election.
It will also require employers to furnish union organizers with all available personal email addresses and phone numbers of workers eligible to vote in a union election. The rule, which takes effect on April 14, allows electronic filing and transmission of union election petitions for the first time.
The NLRB first proposed the change in 2011, but the U.S. Court of Appeals for the D.C. Circuit struck it down over a lack of quorum in a case in which Associated Industries of Massachusetts (AIM) participated. The board re-introduced the rule in February.
Abbreviated union elections place employers at a disadvantage because most don’t find out about a union campaign until it is well under way- frequently when the union has more than 75 percent of the potential unit employees signed up.
“The bottom line for employers who are non-union and wish to remain so is the dramatic reduction in the time available to educate employees, express the company’s point of view on union representation and combat union propaganda during an election campaign,” said Tom Jones, Vice President at AIM.
The decision on accelerated elections came two days after the NLRB ruled that “employee use of email for statutorily protected communications on nonworking time must be permitted by employers who have chosen to give employees access to their email systems.”
Statutorily protected communications generally refer to activities in which employees engage during union organizing campaigns, union elections or in the exercise of their rights to address work grievances. The communications are protected in both union, and non-union, environments.
The NLRB was quick to clarify who is covered by its decision:
- The ruling applies only to employees who have already been granted access to the employer’s email system.
- An employer may justify a total ban on non-work use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline.
- Absent justification for a total ban, the employer may apply uniform and consistently enforced controls overs its email system to the extent such controls are necessary to maintain production and discipline.
- The ruling does not address email access by nonemployees, nor any other type of electronic communications.
Both NLRB decisions were made with three-to-two margins with the Democratic appointees voting in favor and the Republican appointees voting against.
Jones says the expedited election decisions makes it incumbent upon employers to take a preventative, rather than reactive approach to labor relations. The campaign to win votes must be an ongoing effort – even in the absence of a formal campaign or even a remote threat of union activity.
There are several steps employers can take right now:
- Assess your organization’s vulnerability to a union;
- Train your supervisors on the ‘real’ issues that bring in a union – it’s almost always about respect, consistency and fair treatment;
- Communicate with your federal elected representatives;
- Get professional help in assessing and preparing for the possibility of a union drive – waiting until the campaign starts will be too late
Associated Industries of Massachusetts has experts who can help your organization assess, evaluate and prepare for the possibility of a union campaign. Contact our Employer Hotline at (800) 470-6277.