January 2, 2015
By Larry Cary
During 2014 the National Labor Relations Board continued to issue decisions aimed at protecting and advancing workers’ right and did so by overturning harmful older case law. When these decisions are considered together, the Board has clearly set the table for 2015 by allowing unions to more effectively organize the unorganized by winning quick union representation elections.
Throughout the year, the Board emphasized the need to protect and expand non-union employee rights to engage in concerted activity for mutual aid and/or protection while on the job. While unionized employees also have such rights they are sometimes modified by the collective bargaining agreement which also gives employees greater protection against unfair employer discipline.
During 2014 the Board overturned a ten year hold decision,Hollings Press, Inc., which held that a worker seeking to get other employees to come forward as witnesses to support her state agency sexual harassment complaint was not protected by federal labor law. In Dignity Health, decided in June 2014, the Board distinguished Hollings Press when it held that an employee’s discharge was unlawful where the employer fired her for circulating a petition among co-workers complaining about another worker’s behavior after the employer told her not to continue to do so. The discharged employee was seeking to vindicate her version of events by circulating the petition and presenting it to the employer in order to counteract the complaint made by her co-worker to the employer. In Fresh & Easy Neighborhood Market, decided by the Board in August 2014, the Board explicitly overruled Hollings Press and held that the simple act of soliciting coworkers to sign a petition is “concerted activity,” under federal labor even if coworkers refuse to sign it. Even more importantly, the Board held that this activity is protected as being for “mutual aid and/or protection” under federal law even if the employee circulating the petition is doing so only to protect themselves.
Later in the year, in a case called Purple Communications, which was decided in December, the Board significantly expanded the right of employees to communicate with each other while on the job via the employer’s email system. In so doing, the Board overturned its 2007 decision in Register Guard which had held that an employer had the right to ban employee use of its email system for union organizing or for engaging in concerted activity for mutual aid and/or protection. Purple Communications establishes a broad protection of employee use of the email system to communicate with co-workers: if employees are allowed to use the email system to send or receive personal communications it is unlawful for the employer to ban use of the system by an employee to discuss organizing a union or to forward union sign-up cards. An employer could bar all personal use of its email system but has a special burden to show that there is a necessary reason for doing so which relates to maintaining production or control over the work place. The Board says it expects that burden to be met very rarely.
Also in December, the Board issued sweeping changes to its election rules which will greatly speed-up the process in 2015. These rules require a hearing within 8 days of the petition being filed. The parties must work out all of the issues before the hearing and any issue not raised, such as the appropriateness of the bargaining unit, is waived. The Regional Director is empowered to go forward with the election without holding a hearing on the issues raised by the employer until after the election.
Reflecting its appreciation of the ubiquitous use of email, the Board will now serve the employer by email with a copy of the petition. The employer is immediately required to post notices of the petition and to send every employee a copy by email as soon as the Board makes the notice available to the employer.
Within seven days of the petition being filed, the employer must provide the union with the names, classifications, shifts and work locations of all employees within the petitioned bargaining unit. If the employer contends that additional employees outside the petitioned for unit should be included, it must provide the same information about these workers to the union before the hearing date.
The parties are required to agree on the date, time and place of the election before the hearing. Any failure to do so will be resolved by the Regional Director. Within two days after an election is scheduled the employer will now have to provide the union via email the home addresses, and if the employer has it, the personal telephone numbers and personal email addresses of employees considered eligible to vote in the election.
The most significant element in the new rules is that it eliminates the current rule requiring a 25 day waiting period between the direction of an election and the holding of that election. In other words, the time available to the employer to work on employees either lawfully or unlawfully to change their minds about voting for the union has been greatly curtailed. The election could take place as soon as 14 days after the petition was filed.
When combined with the use of micro-bargaining units now permitted under the Board’s decision in Specialty Healthcare, these new election rules, along with the right of employees to petition each other and use the employer’s email system to communicate with each other, represent a fantastic opportunity for the labor movement to now organize the unorganized. Since only about 11% of the workforce is unionized there is no dearth of available targets.
The new election rules go into effect April 15, 2015. The labor movement should not delay in taking advantage of this new legal landscape because there is no guarantee that the next person elected to replace President Obama in two years will want to continue having a Labor Board populated by Board members that seek to actually protect and serve the interests of workers and unions. In other words the case law and new election rules could then be rolled back.
* Larry Cary is a partner at the New York City law firm of Cary Kane LLP, which just celebrated its tenth anniversary. Cary Kane LLP represents unions, workers, employees and union benefit funds.