Regulatory Risk

Union-Related Regulations Increase

Three recent NLRB decisions make it more difficult for employers. GOP control of Congress probably won't make a difference.
By: | January 12, 2015

The National Labor Relations Board surprised virtually no one when it issued a trio of pro-employee decisions as 2014 drew to a close, according to employment-law experts.

But it’s anyone’s guess what will happen after a coalition representing an array of industry sectors and businesses filed suit in the U.S. District Court for the District of Columbia to stop the NLRB from moving forward with its “ambush-elections” rule, which it issued on Dec. 12.

In each of the board’s decisions — regarding employee use of company email for union organizing; the NLRB’s so-called “quickie-election” rule; and changing its standard for deferral to arbitration awards — the board basically told affected employers they will have to adjust to the enhanced union organizing efforts within their workforces.

“It’s not unprecedented to see a rush of substantive NLRB decisions at the end of the year, especially with a board member leaving,” said Steve Bernstein, a partner in the Tampa, Fla., office of Fisher & Phillips, referring to outgoing member Nancy Schiffer, whose term ended Dec. 31.

“They had a full quorum [five voting members] and an upcoming changeover in Congress, so given the Board’s makeup [three Democrats, two Republicans] and based on earlier actions no one is surprised with the flurry of decisions favoring employees.”

“There has always been tension between employer-property rights and union-access rights, and this is more of the same.” — Steve Bernstein, partner, Fisher & Phillips

Bernstein, in fact, characterized the email decision as “seven years in the making,” with labor unions working to get a Bush administration NLRB rule overturned since the day President Barack Obama took office.

“This decision is the culmination of those efforts,” Bernstein said.

What’s most important, he said, is where the email decision fits into the context of other NLRB decisions, and to what extent it’s part of the broader trend of eroding employer property rights.

“There has always been tension between employer-property rights and union-access rights, and this is more of the same.”

Employers Losing Control

Patrick Muldowney, a partner at Baker Hostetler in Orlando, Fla., said the main takeaway on the email decision is that employers are losing even more control over what occurs in their workplaces, including the ability to enforce their email policies.

“Apart from the idea that this is the employer’s [email] network, its asset, it also gets into the idea of what is work time and potentially opens up significant access to unions and union sympathizers,” Muldowney said.

“There are employers that do have very strict ‘business only’ policies regarding email, and they have always been difficult to police, but [employers] still had the right to do so,” he says. “Now, in light of the board’s decision, that can be more of a risk.”

Muldowney says employers must tread carefully when reviewing or even becoming aware of employees’ emails, especially regarding employee discipline. They need to know if an email is an exercise of Section 7 rights.

“Employers must review their policies and amend them so they are not subject to attack by unions after an unsuccessful election.” — Patrick Muldowney, partner, Baker Hostetler

“Employers must review their policies and amend them so they are not subject to attack by unions after an unsuccessful election,” he said.

Legal experts also said the decision probably will raise questions about the definition of “nonworking” time, because the NLRB decision stated that workers only have the right to use the company email system for the labor-related issues during nonworking time, “unless an employer can show that doing so would hurt production or discipline.”

Joel Barras, a partner and employment attorney at Reed Smith in Philadelphia, said the email decision also raises a potential litigation issue.

“An employer’s communication system may also become an incredibly effective tool used to recruit members to form or join class-action cases,” he said.

Quickie Elections

While the NLRB said its “quickie-election” rule was simply “modernizing its processes,” legal experts said that reducing the time between the filing of a petition and a union election denies employers an adequate chance to stage an anti-union campaign prior to employee voting.

This rule goes into effect on April 14.

The average time for the election process is now somewhere between 38 and 42 days, experts said. The new rule can drop that number to as few as 10 or 20 days, which critics contend, creates an “ambush-election” scenario — and is a serious setback for employers trying to respond to worker demands and union promises.

Arbitration Awards

The third key NLRB decision changed the standard for deferral to arbitration awards for employees who allege they suffered retaliation or reprisal for engaging in union and/or protected concerted activity in violation of the National Labor Relations Act.

The NLRB ruled that employers urging deferral to an arbitration award now must prove that the “statutory issue” was presented to the arbitrator, that the arbitrator considered the statutory issue, and that NLRA law “reasonably permits” the award.

The rule gives the NLRB more discretion whether to exercise deference to arbitration procedures, Muldowney said.

“The standard used to be deferring to an arbitration award when it wasn’t clearly repugnant to the NLRA,” he said. “You might say this gives an employee another bite at the apple if they are not happy with an arbitration outcome. The board has said it no longer needs to automatically defer to arbitration decisions.”

GOP Control

It’s unclear whether the new Congress, with both bodies now controlled by the GOP, will make it tougher for the NLRB’s employee friendly decisions.

Muldowney said that Obama administration nominees may face a tougher approval process.

“It won’t be as easy to get more hardcore pro-union members through the Senate,” he said. “Or, nominees for the board could become collateral damage relating to whatever battles Congress has with the president regarding other issues — the immigration executive order, for example.”

Barras doesn’t expect current board members to be swayed by the GOP-controlled Congress, which he said, only has two levers it can pull: not approving a presidential nominee or withholding funding. The latter probably will not happen, he said.

For now, Barras recommends that organizations review personnel policies and adopt and/or strengthen existing union avoidance programs, as waiting for a petition to be filed might be too late.

“You have to stay on top of it,” he said.

Tom Starner is a freelance business writer and editor. He can be reached at [email protected]

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