Labor Board rules open employees’ e-mail to union communications

National Labor Relations Board had adopted a final Representation–Case Procedures rule to modernize and streamline union organizing and election 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 a) provides for electronic filing and transmission of election petitions and other documents; b) requires that additional contact information, such as personal telephone numbers and e-mail addresses, be included in voter lists, to the extent that information is available to the employer; and, c) 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 employer “Statement of Position” submittal 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.

The Coalition for a Democratic Workplace, representing a wide range of business groups—National Precast Concrete Association, National Ready Mixed Concrete Association, Portland Cement Association and American Concrete Pressure Pipe Association among them—is challenging the Representation-Case Procedures rule in federal courts, arguing the agency’s action “paves the way for unfair and illegal ‘ambush’ elections.”

“The rule is designed to prevent employees from gathering the facts before they cast a ballot for or against union representation,” says CDW Legal Strategist Josh Ullman. “[It] is yet another attempt by this agency to push the agenda of large labor unions at the expense of employees and employers. Time and again, the one-sided agenda of the president and his NLRB has been beaten back in court, and CDW will again look to protect millions of American workplaces by seeking redress through a lawsuit.”

“The ambush rule further demonstrates the Board’s shift from neutral arbiter of labor law to cheerleader for big labor,” adds Associated Builders & Contractors Vice President of Government Affairs Geoff Burr. “ABC opposes this erosion of workplace and privacy rights, which will lead to the unsolicited distribution of employees’ personal contact information and drastically shorten the period of time between when a petition is filed and representation election held. We will continue to lead the fight against ambush elections through every available avenue.”

The Representation-Case Procedures final rule is one of two union-friendly measures with which the NLRB closed 2014. In its Purple Communications ruling the day prior to adopting Procedures amendments, the Board held that employees can use company e-mail systems to circulate union materials, reasoning that today’s workplace is “the natural gathering place” for communications and e-mail the common form of dialogue.

Representation-Case Procedures and Purple Communications are “aimed at benefiting Big Labor at the expense of business and worker interests,” contends Competitive Enterprise Institute Senior Fellow Aloysius Hogan. “These latest NLRB maneuvers are part of President Obama’s ‘pen-and-phone’ strategy to advance a pro-union agenda. Under new [Representation] rules … union elections will take place in as few as 10 days from the request to unionize. That will effectively ambush businesses and employees who are left without time to discuss the downsides and tradeoffs of unionization.”

Representation-Case Procedures expands organized labor’s power, explains Hogan, “By giving it access to company e-mail exchanges for union business. [It] infringes on worker privacy by requiring employers to provide unions with workers’ contact information—including phone numbers and e-mail addresses—before the union has won representation over the workplace.”