NLRB opens employer e-mail systems to union organizers, campaigning

Sources: National Labor Relations Board; CP staff

NLRB has adopted a final Representation–Case Procedures rule to modernize and streamline representation dispute resolution, Chairman Mark Gaston Pearce noting: “With these changes, the Board strives to ensure [the] process remains a model of fairness and efficiency for all.”

The rule is effective mid-April 2015 and, the agency contends:

  • Provides for electronic filing and transmission of election petitions and other documents;
  • Ensures employees, employers and unions receive timely information they need to understand and participate in the representation case process;
  • Eliminates or reduces unnecessary litigation, duplication and delay;
  • Adopts best practices and uniform procedures across regions;
  • Requires that additional contact information (personal telephone numbers and e-mail addresses) be included in voter lists, to the extent that information is available to the employer; and,
  • Allows parties to consolidate all election-related appeals to the Board into a single process.

“This is the Board’s second attempt to implement sweeping changes to representation election procedures, and it again reflects pro-labor leanings,” counters Workforce Freedom Initiative Director, Research & Legislative Affairs Sean Redmond in a U.S. Chamber of Commerce post. “It is intended to eviscerate employers’ legal rights and hamstring their ability to respond to union organizing efforts in any meaningful way.”

After receipt of election petition, he adds, the rule requires a) pre-election hearing within eight days, and b) the employer to submit a “Statement of Position” within seven days. Failure to raise a particular issue in the filing precludes the employer from presenting related evidence—or cross-examining a witness—at the representation hearing. That raises due process concerns, especially for small businesses that may not have legal counsel.

Representation-Case Procedures also limits the issues and evidence that can be presented at a pre-election hearing, which may leave questions unresolved prior to balloting, including matters no less than who is eligible to vote for union representation. Finally, Redmond explains, the rule eliminates the employer’s ability to appeal Regional Directors’ pre-election decisions, plus the current 25-day “grace period” between the end of the hearing and election. This will accelerate the election process and make it difficult for workers to get balanced information about unions.

Provisions affording unions employee e-mail addresses are on top of measures stemming from a decision the NLRB announced the day before Representation-Case Procedures. In Purple Communications, the agency determined that employees can use company e-mail systems to circulate union materials.