The National Labor Relations Board took a progressive turn in 2014. The Board ordered employers to pay union bargaining expenses to remedy bad faith bargaining and dilatory tactics in Fallbrook Hospital and Hospital of Barstow, Inc. The NLRB’s General Counsel issued a complaint seeking to hold McDonald’s responsible for labor violations under a joint employer theory of workers employed by franchisees.
In keeping with a recent trend toward stronger enforcement of workers’ rights, at the close of 2014 the Board published landmark decisions advancing workers’ rights.
On December 11, 2014, the Board issued a decision affirming the right of workers to use work email for engaging in concerted activity for mutual aid. In Purple Communications, the Communications Workers of America challenged the employer’s email communication policy under which workers were prohibited from “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.”
In a split decision, the Board held that employee use of email for protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system. This decision overruled the 2007 Register Guard decision, under which an employer could substantially interfere with the labor rights of employees by imposing broad prohibitions on the use of electronic communication to organize into a union. In this decision, the Board recognized that labor laws must be adapted to the changing patterns of industrial life.
This holding means that employees may not be disciplined for using work email to send messages about union organizing during their own time. However, the Board noted its decision is “carefully limited.” First, it applies only to employees who have already been granted access to the work email system. Second, an employer may still completely ban the non-work use of email, including use on nonworking time for Section 7 purposes, by demonstrating special circumstances that make the ban necessary to maintain production or discipline.
On December 15, 2014, the NLRB published a final rule to modernize and streamline representation election procedures. The new procedures will:
• provide for electronic filing of election petitions and other documents;
• ensure that information needed to understand and participate in the representation process is disseminated to employees, unions and employers in a timely manner;
• eliminate or reduce unnecessary litigation, duplication, and delay;
• require that available telephone numbers and email addresses be included in voter lists in order to enhance the exchange of ideas by permitting other parties to the election to communicate with voters using modern technology; and
• allow for parties to consolidate all election-related appeals to the Board into a single appeals process.
These needed changes should lead to increased organizing in 2015. The current rules allow employers to manipulate and delay the organizing process through costly and unnecessary litigation. The new procedures will go into effect on April 14, 2015, unless blocked via litigation recently initiated by management organizations.
Beeson, Tayer & Bodine — Oakland: 510-625- 9700. Sacramento: 916-325-2100.