Legal Alerts

19 Dec 2014

NLRB Delivers Holiday Gifts to the Wating Arms of Unions Eager to Organize Employees

NLRB Delivers Holiday Gifts, In a series of actions, the National Labor Relations Board (“Board”) has continued to implement its plan to make it easier for unions to organize employees. Given the recent developments, now is the time for employers to take actions to minimize the impact of the Board’s actions. A brief synopsis of these developments follows, with links to separate entries on our blog providing greater detail and recommendations that employers should strongly consider before it’s too late.

  1. Board Commits to Narrow Definition of “Solicitation”
    In a case involving ConAgra Foods, Inc., 361 NLRB No. 113, the Board emphasized that the term “solicitation” in the context of workplace discussions about unions should be narrowly defined as asking someone to join a union by asking them to sign an authorization card. Thus, in the Board’s view, an employee does not engage in “solicitation” by merely asking a fellow employee to attend a union meeting, by discussing the merits of bringing in a union, or even by requesting the fellow employee’s general support of the Union. To constitute a “solicitation” the initiating employee must ask the other employee to sign an authorization card for the union or otherwise to join the Union. The Board’s endorsement of this narrow definition of the term “solicitation” has profound consequences for many employers. Click here to learn more.
  2. Employees can now use their employer’s email system to engage in union organizing
    Following its decision in ConAgra Foods, the Board issued Purple Communications, Inc., 361 NLRB No. 126 (2014), where a divided Board found that employees given access to their employer’s email system have a presumptive right to use their employer-provided email to engage in protected, concerted activities on non-working time. Although the Board contends its ruling is limited, its impact cannot be overstated. Even the Board acknowledged that while employers can ban employees from soliciting one another during working time, it is not appropriate to treat email communications as solicitation or distribution per se. Employees’ email communications may indeed fall within the ambit of solicitation or distribution depending upon the content. However, according to the Board, in most cases such communications will not constitute either solicitation or distribution, but merely “union talk,” which absent a legitimate rule prohibiting employees from talking about any non-work subject during working, would not be something for which employees could be disciplined. Reading Purple Communications and ConAgra Foods together, the Board has effectively opened up an employer’s email system for use by unions and their supporters in organizing campaigns. To learn more about how Purple Communications will necessarily impact your operations, click here.
  3. NLRB’s new election rules make it easier – and faster – for unions to organize
    Finally, the Board published its new election rules on Dec. 15, 2014. These new rules, which make significant changes to the Board’s election procedures, will inevitably result in elections being conducted much earlier, perhaps in as few as 13 days from the filing of a petition. These changes are scheduled to take effect on April 14, 2015. The changes to the election rules deliver the gift that unions have sought for years—an accelerated election process that reduces the time employers have to present employees with facts about unions and the collective bargaining process so that employees can make an educated and informed decision about union representation. By limiting the amount of time employers have to campaign against the union, the Board has severely limited an employer’s ability to mount an effective counter-campaign. The alarm has sounded—the time for employers to act is now. The only effective weapon an employer has against accelerated union campaigns is advance preparation. Click here to learn more about the proactive steps you can take now.

If you have any questions about Labor Relations or any other Employment Law matter, please do not hesitate to contact R. Michael Lowenbaum, Corey L. Franklin, D. Michael Linihan, Robert S. SeigelDavid P. Frenzia, Whitney P. Cooney, or Jamie M. Westbrook.


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