NLRB Issues Important, Employer-Friendly Decisions in 2007
May 14, 2008
Todd D. Steenson- Chicago
In 2007, a Republican-dominated National Labor Relations Board (NLRB or Board) issued several pro-employer decisions on issues of great significance. Even more importantly, these decisions impact all employers, including those who do not currently have unionized work forces. In one, the Board ruled that employers can prohibit employees’ use of their email system for non-job-related communications, including union communications, even if they allow limited personal use of the email system. In another decision, the Board limited the usefulness of a method unions have been using, with great success, to organize workforces without resorting to the NLRB’s secret-ballot election processes. And, in a third, the Board limited unions’ ability to plant union supporters in an employer’s workforce to engage in union organizing.
NLRB Rules That Employees Have No Right to Use an Employer’s Email System for Union Purposes
In a highly significant decision, the Board ruled for the first time that employees have no right to use an employer’s email system for union communications and that employers may maintain a policy prohibiting employee use of the employer’s email system for non-job-related reasons even if the employer had allowed employees to use the email system for various personal reasons such as giving away tickets or announcing the birth of a child. Guard Publ’g d/b/a Register-Guard, 351 N.L.R.B. No. 70.
However, this decision was sharply divided along party lines, and the terms of office of two of the Board members in the majority (and one in the dissent) expired within days of the decision.
Therefore, there is room for doubt as to whether this decision will remain the law when a new, full Board is constituted. There is also reason to question whether portions of this decision will survive on appeal.
Union Communications in Email
The three Republican members of the Board ruled that an employer may bar all non-business use of email and that an employer does not have to allow employees to engage in union communications over the employer’s email system. They reasoned that company-owned email systems are no different from company-owned telephone systems, bulletin boards, copiers or televisions. Just as an employer may limit the use of its bulletin boards, the majority held that an employer may limit the use of its email system.
The Board further rejected the argument that employees should be allowed to use an employer’s email system to discuss union issues during non-working time. Instead, the majority found that employees had ample opportunity to talk with one another about union issues during non-working time and that barring them from discussing union issues on email would not prohibit such communications.
The dissent’s approach was fundamentally different. The dissent stated that email “cyberspace” is essentially the employees’ workplace or, as the dissent called it, a “natural gathering place.” Because email is “where” employees do much of their communicating, the dissent looked at whether the employer’s communications systems policy “interfered” with employees’ right to discuss union issues. Because a complete ban on union communications over email interferes with employees’ rights to solicit other employees on union issues, the dissent would require the employer to demonstrate legitimate business reasons that outweigh the interference. In essence, the dissent would rule that absent a specific showing of harm by the employer, employees must be allowed to use email for union communications during their non-working time.
In another major change in the law, the Republican majority on the Board modified its previous standard for determining whether an employer has discriminatorily enforced its communications policies against union activity. Previously, the Board had held that an employer illegally discriminated against union communications if it allowed any other non-work-related communications – even a small amount of personal communication or email use – while prohibiting union communications. In this decision, however, the Board ruled that “in order to be unlawful, discrimination must be along Section 7 lines.” In other words, an employer illegally discriminates only if it bars communications because they involve employees’ attempts to band together to protect themselves or to engage in union activity.
Further explaining this distinction, the Board stated that an employer’s policy may lawfully permit numerous kinds of non-work-related communications while still banning solicitations for unions and similar organizations. “[A]n employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.” Only if an employer bars union communications while allowing communications for similar organizations will it be found to have violated the law. The majority did, however, caution that “if the evidence showed that the employer’s motive for the line-drawing was antiunion, then the action would be unlawful.”
The Board found that Guard Publishing Co. legally enforced its policy when it issued disciplinary warnings to the president of its employees’ union for sending two emails urging employees to wear green to support the union in contract negotiations and to participate in the union’s entry in a local parade. According to the Board, there was no evidence that the employer knowingly allowed email solicitations of support for any other organization. But the Board found that the publisher illegally disciplined the union president for sending a separate email clarifying the controversial facts surrounding a union rally. This email was not a solicitation to support an organization, but merely a discussion similar to those found in personal emails the company had allowed, the Board said.
The importance of this decision may not be immediately apparent. The Board’s decision appears sensible and it fits with what many employers had been doing – limiting email to business use with an exception for limited personal use. The importance becomes clear, however, when one examines what the Board could have ruled. The Board’s enforcement arm had taken the position that employees had a right to use an employer’s email system for union communications, and that an employer could not prohibit all non-business use of email. Furthermore, under prior precedent, an employer violated the law if it prohibited union emails, while allowing even limited personal use of email. Had the Board so ruled, employers would have been forced to open their email systems to union communications, at least when both employees communicating were on non-work time.
This decision holds that employees have no right to use email for union purposes, thus validating the email policies many employers have adopted. It also makes clear that an employer can adopt a policy that allows limited non-business use of email, including limited personal use and solicitations on behalf of charitable groups, yet still prohibit emails relating to organizations, including unions.
Nonetheless, there are some caveats to the decision. First, the Board majority noted that the employees at issue had substantial opportunities for face-to-face communication; email was not their only or primary means of communication. Thus, the Board was able to conclude that prohibiting union communications over email did not significantly limit employees’ opportunities to communicate about union issues. If faced with a workforce in which employees could not talk face-to-face but, instead, communicate mainly by email, the Board could reach a different conclusion. Second, it seems quite likely that the Register-Guard decision will be appealed by the union and there is reason to question whether the decision will survive on appeal. Third, there is a significant risk that if a future Board contains a majority of Democrats, it will overrule portions of this decision. Therefore, any employer adopting or modifying its email policies may wish to carefully consider whether it may have to justify to a future Board the business reasons for its policies or show that it has not allowed various kinds of personal email. And, in any event, even after this decision, email and communications policies must be drafted with care. Employers should review their email, employee communications and solicitation and distribution policies with counsel in light of this significant decision.
NLRB Modifies Its Long-Standing Recognition-Bar Doctrine
Over the last 10 years, unions have increasingly been opting out of the Board’s election process for union organizing. The number of representation petitions (the mechanism to invoke the Board’s election procedures) filed with the NLRB has dropped by 41 percent. In fact, less than 20 percent of the three million workers organized by AFL-CIO unions from 1998 to 2003 were organized through the Board’s processes.
Rather than relying on the NLRB’s election procedures to organize, unions have negotiated agreements that require employers to remain neutral (e.g., not actively oppose unionization) during an upcoming union organizing campaign. These neutrality agreements generally state that the employer will not exercise its right to demand a Board-supervised election, but will instead recognize the union, and participate in collective bargaining, if a majority of the employees sign cards authorizing the union to serve as their representative(“card check”). In contrast to the safeguards provided by the Board’s secret-ballot election process, there is little limit on the kinds of pressures unions can use to induce employees to sign these authorization cards.
These private organizing efforts have prospered because of a doctrine called the “voluntary recognition bar.” What this means is that when an employer voluntarily recognizes a union – such as through a neutrality and card check agreement – the union’s status may not be challenged, by either dissenting employees or another union, for a reasonable period of time. Furthermore, if the union reaches a contract with the employer during that “reasonable period,” dissenting employees and other unions are barred from challenging the incumbent union’s status for up to the first three years of that contract’s term.
In Dana Corp., 351 NLRB No. 28, the NLRB changed the recognition bar in a way that significantly undermines private organizing through neutrality and card check agreements. In a 3-2 decision, the Board held that an employer’s voluntary recognition of a labor organization does not immediately bar other employees or unions from challenging the voluntarily recognized union’s status. Rather, employees or other unions may challenge the union’s status within 45 days of the employer’s notice of recognition.
It may be difficult at first blush to see how significant this decision is. But unions have been pouring a lot of resources into seeking voluntary recognition. Because, after Dana Corp., unions cannot be sure that a voluntary recognition will “stick,” they may be less willing to seek voluntary recognition and more likely to return to the Board’s secret-ballot election process. This will give employers the opportunity to tell employees their side of the story and limit the pressure that often accompanies union attempts to secure authorization cards from employees.
NLRB Limits Protections for Salts
In Toering Electric Co., 351 NLRB No. 18, the Board limited yet another common organizing method by ruling that union “salts” are not protected unless they are “genuinely interested” in employment.
A union “salt” is an individual sent by a union to apply for work with a nonunion employer to either organize the company from within or provoke the company to commit an unfair labor practice. In NLRB v. Town & Country Electric, 516 U.S. 85 (1995), the Supreme Court ruled that “salts” are “employees” protected by the National Labor Relations Act (NLRA). This means that employers violate the NLRA by either refusing to hire or terminating an individual because he or she is a salt, i.e., because of his/her union affiliation.
In recent years, however, unions have taken to submitting large numbers of applications by salts not actually seeking employment – some who did not even know about the applications – simply in an effort to generate unfair labor practice charges from the resulting refusals to hire. Unions then use those charges to claim in a union organizing campaign that the employer is unfair. Despite this, the Board had simply presumed that any applicant – regardless of his or her interest in actually obtaining employment – was an “employee” under the NLRA eligible to file an unfair labor practice charge and potentially obtain back pay damages.
In Toering Electric Co., however, the Board limited such abusive union “salting” campaigns by ruling that for an employment applicant to qualify as an “employee” protected by the NLRA, he or she must have a bona fide interest in securing employment. It further removed the presumption that all applicants are entitled to NLRA protection. Rather, the Board’s general counsel must now prove that the applicant is genuinely interested in seeking employment with that employer to obtain NLRA protection.
It is important to note that this decision does not remove all protections for salts. It merely denies protection in the abusive cases in which the salt’s application is submitted simply in the hope of generating a rejection and thereby providing the basis for an unfair labor practice charge. A salt will be able to obtain NLRA protection by proving that (1) the applicant sought employment, and (2) the applicant genuinely intended to obtain and accept that employment. Importantly, the employee has the burden to prove these facts.
Hopefully, this decision will limit the most abusive salting campaigns. Nonetheless, employers should be sure that they can articulate a reason other than an applicant’s union affiliation – including evidence that the individual truly does not desire to work – before rejecting an applicant.
For more information, email Todd D. Steenson at todd.steenson@hklaw.com or call toll free, 1.888.688.8500.
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