Epic Fail: Obama NLRB Gives Unions Access to Employers’ Email Systems

Posted by Ryan O'Donnell on Mon, Dec 15, 2014 @ 10:35 AM

Earlier this week, the National Labor Relations Board (NLRB) issued a decision (Purple Commc’ns Inc) giving employees the right to use employers’ email systems for non-business purposes—including union organizing. This ruling overturns the Board’s 2007 decision in Register Guard, and opens up yet another front in the partisan Board’s war against employers.

In its decision, the Board declared the analysis in Register Guard to be “clearly incorrect,” and one that focuses “too much on employers’ property rights and too little on the importantance of email as a means of workplace commutation.” As a result of this ruling, agues the Board, the NLRB “failed to adequately protect employees’ rights under the Act” and abdicated its responsibility to “adapt the Act to the changing patterns of industrial life.” Indeed, throughout its analysis, the Board justifies its ruling by referencing email’s new role as the “primary means of workplace discourse.”

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Having dismantled Register Guard, the Board will now adopt a “presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time.”

In an attempt to mollify employers, the Board offers the following three limitations on employee’s ability to use email for organizing purposes:

  1. This decision applies only to employees who have been granted access to the employer’s email system in the course of their work; employers are not required to provide such access
  2. Employers may justify a total ban on non-work use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline.
  3. This decision does not address nonemployees or any other type of electronic communication.

These limitations, however, offer little solace to employers already struggling to comply with the avalanche of union-friendly regulations churned out by an increasingly hostile NLRB.

A Powerful Dissent

The Board’s decision in Purple Commc’ns Inc., is unprecedented. As Board Member Philip Miscimarra notes in his dissent, “The [National Labor Relations] Act has never previously been interpreted to require employers, in the absence of discrimination, to give employees access to business systems and equipment for NLRA-protected activities that employees could freely conduct by other means.” Furthermore, it is all but impossible “to determine whether or what communications violate restrictions against solicitation during working.”

Member Johnson, who penned his own 32-page dissent, hammered the majority’s decision for essentially forcing employers to subsidize speech in violation of the U.S. Constitution. Johnson argues, “The First Amendment violation is especially pernicious because the Board now requires an employer to pay for its employees to freely insult its business practices, services, products, management, and other coemployees in its own email. All of this is now a matter of presumptive right…”

Looking forward, Johnson’s dissent warns that “Taken to its extreme, the majority’s…rationale would just as easily apply to taking over an employer auditorium, or conference room in the middle of the workday during an employer presentation/conference.

The Road Ahead

On a practical level, however, employers must now re-evaluate their internal rules and regulations regarding employee use of company email. Specifically, Purple Commc’ns Inc has now rendered most employee handbooks obsolete; employers should, over the next few weeks, review their employee email communications policy, and contact their labor counsel to examine how this stunning new decision will impact existing company policies.

Tags: NLRB, Unions, National Labor Relations Board, right to unionize, Register Guard, violation of National Labor Relations, Labor Law

NLRB Moves to Implement “Ambush” Election Rule

Posted by Bud O'Donnell on Wed, Feb 12, 2014 @ 10:54 AM

Breaking News:  Last week, the National Labor Relations Board (NLRB) announced that it’s moving to shorten the length of time in which a labor union certification election is held.

ambush election

The Basics:  According to the Board, this new rule would:

  • Allow for electronic filing and transmission of election petitions and other documents;
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
  • Streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
  • Include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
  • Consolidate all election-related appeals to the Board into a single post-election appeals process.

Impact on Employers: Currently, the average time between when a union files a representation petitionthe first step in organizing a workplace into a unionis 38 days, but this new rule would reduce that to as few as 10 days.  Consequently, unions could launch guerrilla-organizing campaigns that, because of the compressed timeline, deny management its legal right to discuss with their employees whether a union has anything worthwhile or constructive to offer them or the company. 

As noted in a letter from the U.S. House of Representatives labor committee to NLRB chairman Mark Gaston Pearce, a former union attorney, “[t]his rule will seriously limit employer free speech and undermine employee free choice.”  The NLRB announcement also drew criticism from business groups such as the National Retail Federation.

Furthermore, employers need to be concerned about the impact on their employees’ privacy.  As unions are exempt from some state laws against stalking or trespassing when their members are engaged in organizing activities, as a report from the U.S. Chamber of Commerce revealed in 2012, questions as to how and to what extent unions will use employees’ personal information remain unanswered.

What’s Next:  The Board will be accepting public comments on the new proposed rulemaking through April 7, 2014.  The Board will also hold a public hearing during the week of April 7.

Bottom line for Employers:  With a clear Democratic majority, the Board will likely move quickly to implement this new rule. However, on March 5, 2014, the U.S. House of Representatives Education and Workforce Committee will be holding a hearing on the ambush election proposal.  We will continue to keep you updated as the NLRB continues to push its pro-union agenda.

Tags: NLRB, National Labor Relations Board, SNAP elections

Micro-Unit Union Battle Brewing

Posted by Bud O'Donnell on Tue, Sep 03, 2013 @ 10:26 AM

Last month, unions across America received a significant boost when the Sixth Circuit Court of Appeals upheld a 2011 ruling by the National Labor Relations Board that allowed unions to organize smaller “micro units” of workers.

The 2011 case, Specialty Healthcare, 357 NLRB No. 83 (Aug. 25, 2011), aff’d sub nom, 727 F.3d 552 (2013), involved a union that wanted to try and organize a group of nonprofessional nursing assistants—despite the employer’s argument that other nonprofessional employees should have been included in the unit. In its ruling, the Board upheld the union’s position, while noting that if an employer believes employees should be included in a particular unit, it is the employer’s burden to demonstrate those workers “share an overwhelming community of interest.”Unions

In its review of the Specialty Healthcare decision, the Sixth Circuit determined that the Board has “wide discretion,” in determining the constitution of a bargaining unit”—unless “the employer establishes that [the Board’s decision] is arbitrary, unreasonable, or an abuse of discretion.” 

The Board’s decision in Specialty Healthcare turned 75 years of labor law on its head.  And now, the Sixth Circuit has doubled-down on this seismic legal shift by affirming the Board’s decision. Yet, these rulings might still backfire on organized labor.  Often, unions use micro units to gain a foothold in an employer’s workforce—the proverbial camel’s nose under the tent.  In order to prevent unions from using the Specialty Healthcare decision to establish organizing beachheads, employers are now going to fight harder to keep their companies union-free.

Such an unanticipated consequence might toss a bit of cold water on organized labor’s post-Specialty Healthcare celebrations, but employers should still be wary.  The Sixth Circuit’s decision will not only pave the way for an increase in union organizing activity; it will likely also embolden a National Labor Relations Board that already seems intent on giving organized labor an unfair advantage. 

Photo credit: Breitbart.com

Tags: NLRB, Unions, National Labor Relations Board, right to unionize

High Court Ruling Bars Backpay for Undocumented Workers

Posted by Bud O'Donnell on Sun, Jul 28, 2013 @ 09:00 AM

Earlier this month, the United States Court of Appeals for the Second Circuit upheld a controversial NLRB decision—Mezonos Maven Bakery, 357 NLRB No. 47—regarding the award of backpay to undocumented aliens. Specifically, this case considered whether “undocumented workers who have engaged in fraud or criminal activity in violation of the Immigration Reform and Control Act (IRCA) in obtaining or continuing their employment are entitled to backpay where their employer…hired and retained them knowing they were undocumented.”NLRB

Finding that the instant matter was materially different from the Board’s decision in Hoffman Plastic, the administrative law judge initially found in favor of the employees. In Hoffman Plastic, the Board‘s holding precluded backpay in a scenario where the  alien “violates the IRCA by presenting the employer with fraudulent documents,” and the “employer is unaware of the fraud.”

Specifically, the ALJ ruled that the instant matter was materially different from Hoffman Plastic because the employer—not the employee—violated the IRCA. As a result, the ALJ concluded that a backpay remedy was necessary. The Board, however, disagreed.

The Board Applies Hoffman Plastic

In August 2011, the Board declined to adopt the ALJ Order. According to the Board, Hoffman Plastic’s “holding is categorically worded” with “no distinction based on the identity of the IRCA violator.” As a result, Hoffman Plastic “broadly precludes backpay awards to undocumented workers regardless of whether it is they or their employer who has violated the IRCA. Indeed, “regardless of which party violated the IRCA, the result is an unlawful employment relationship.

A Matter of Public Policy

The Second Circuit Court of Appeals has weighed in as well, upholding the Board’s interpretation of Hoffman Plastic. In its decision, the Second Circuit places particular emphasis on public policy concerns: “Awarding backpay would ‘not only trivialize the immigration laws,” but would also “condone and encourage future violations.” Quoting Hoffman Plastic, the Second Circuit addressed the ALJ’s suggestion that aliens who did not present fraudulent documents but who are in the U.S. illegally, noting that it sees “no reason to think that Congress nonetheless intended to permit backpay where but for an employer’s unfair labor practices, an alien-employee would have remained in the United States illegally, and continued to work illegally, all the while successfully evading apprehension by immigration authorities. “

The Second Circuit did. However, remand the matter back to the Board for consideration of one additional issue: Whether to grant petitioners requested remedy of reinstatement contingent on the production of work authorization documents.

Tags: NLRB, National Labor Relations Board, Associated Builders and Contractors, Immigration

Obama NLRB Recess Appointments Unconstitutional

Posted by Bud O'Donnell on Thu, Jul 18, 2013 @ 11:00 AM

The Fourth Circuit Court of Appeals has joined the DC Circuit and Third Circuit in holding President Barack Obama’s recess appointments of three NatioObama NLRBnal Labor Relations Board members were unconstitutional.

The dispute arises from three NLRB appointments the President made on January 4, 2012—appointments made while the Senate was on a holiday break but still in session. Although the administration claimed that “the break qualified as a recess because there were not enough senators at work to conduct business,” the Fourth Circuit—in addition to previous holdings by the DC Circuit and the Third Circuit—disagreed. Specifically, the court held that “the framers of the Constitution meant to limit recess appointments to the period between congressional sessions, and that’s how it was done until a 1921 attorney general’s opinion.”

As a result of this decision, and the previous circuit court decisions, hundreds of NLRB decisions may possibly be invalidated.  

The U.S. Supreme Court has agreed to hear the D.C. case.

Tags: NLRB, National Labor Relations Board, violation of National Labor Relations

Job-Targeting Programs: Another Advantage for Organized Labor

Posted by Ryan O'Donnell on Thu, Nov 08, 2012 @ 03:52 PM

In a critical new ruling, the National Labor Relations Board held that “union job targeting programs, including those funded in part by voluntary deductions from the wages of union members employed on State-funded public works projects, are clearly protected under Section 7 of the Act.” This latest ruling throws up yet another roadblock in front of contractors already contending with a stagnant economy and burdensome regulations.  

Job targeting programs, also known as market recovery funds, are yet another one of the economic weapons organized labor can deploy against non-union contractors. As part of these programs, unions collect dues which are then used to subsidize “union friendly” contractors. Yet, job targeting programs aren’t just about keeping organized labor’s allies in business; these subsidies put non-union contractors on the defensive, as the union shops are able to lower the gap between union and non-union contractors.

In this case (J.A. Croson Company, 359 NLRB No.2, 2012), the collective bargaining agreement contained a dues-checkoff provision requiring member employers to “deduct and remit to the Union, pursuant to voluntary authorizations signed by unit employees, due in the amount of 1.75 percent of the employees’ gross wages as a “Market Recovery Assessment.” The money collected was then used to fund the union’s “job targeting program, which funneled money to unionized contractors. The purpose of this program was clear: to “lower union contractor’s overall costs to complete targeted projects, enabling union contractors to submit competitive bids.”

job targeting NLRB

In response to the union’s job targeting program, J.A. Croson Company, an ABC member, filed a lawsuit charging that the wage deductions violated state law. The Ohio Supreme Court eventually held that this lawsuit was preempted by the National Labor Relations Act (Act), and an administrative law judge found that Croson’s lawsuit did not violate the Act. The Board, however, reversed the judge’s ruling, holding instead that union job targeting programs are “clearly protected by Section 7 of the Act.” Consequently, the Board also held that Croson’s state court lawsuit was preempted by the Act, and that Croson’s lawsuit did not garner First Amendment protection: Indeed, by merely filing the lawsuit, Croson violated Section 8(a)(1) by interfering with union activity.

As a result of the Board’s J.A. Croson Company decision, the playing field has, once again, been titled in favor of organized labor.

Tags: NLRB, Unions, National Labor Relations Board, Union Corruption, Job-targeting programs, Associated Builders and Contractors

NLRB Recess Resignations

Posted by Bud O'Donnell on Wed, Jun 06, 2012 @ 02:16 PM

Terence Flynn, a Republican, nominated to the Board by President Obama has resigned from the National Labor Relations Board (NLRB) effective July 24, 2012.  In the interim, Flynn has recused himself from all agency activities.Flynn Resigns

Flynn was one of three recess appointments made by the Obama Administration.As the constiutitonality of these appointments remains suspect, each one is currently being contested in court. Specifically, the lawsuit filed against these appointments claims that, becayse Congress was technically in session when the appointments were made, the Administration lacks the authority to make an "interm" appointment.

A Vacuum

Flynn’s resignation now leaves the NLRB with three Democratic appointees, and just a single Republican. Considering the current political climate in our nation's capital, its unlikely the President will make another appointment before the 2012 election. And should the President buck conventional widsom and make a new appointment, the odds of such an appointment being Republican are almost zero. 

Flynn’s resignation sets the stage for another political battle between the administration and the Congress over a NLRB appointee. This new battle will continue even as litigation over the temporary appointment continues in the court.

It is unlikely we will see a resolution of this issue until after the elections this Fall.

Tags: NLRB, Unions, National Labor Relations Board, SNAP elections

NLRB Ambush Elections: More Than Just Showing Up

Posted by Bud O'Donnell on Wed, May 16, 2012 @ 06:55 PM


In an important victory for employers and proponents of individual freedom, U.S. District Judge James Boasber threw out a recent NLRB “Snap” election mandate.

Woody Allen and the Quorum Requirement

“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in an opinion issued today. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”snap elections

In this case, Boasberg held that only two of the three members of the Board actually voted on the rule—3 members are required to constitute a quorum. Although the Board claimed its "snap" election rule was based on a 2-1 vote, the Board’s sole Republican member, Brian Hayes, was not able to cast his vote, as he was given only a few hours notice via the NLRB’s electronic ballot system. Boasberg ruled that, despite the Board’s claims to the contrary, Hayes’ inability to vote did not constitute a vote. Therefore, with a final vote of just 2-0 on what’s supposed to be a five-member Board, the court ruled that there was no quorum and therefore the rule was invalid.

As a result, representation elections will continue under previously established procedures unless the board votes with a proper quorum.

Bottom Line for Employers

Boasberg’s decision is, most likely, a temporary reprieve for employers. Given that Obama has (through dubious recess maneuverings) appointed new members to the Board, the passage of yet another Snap election rule seems likely—as does the another battle over whether a quorum exists. Until the President stops playing games with recess appointment—or a more business friendly President is elected—employers should expect uncertain regulatatory climates to persist.


Tags: NLRB, Unions, National Labor Relations Board, SNAP elections, Union Corruption, Craig Becker

NLRB Attacks Mandatory Employment Arbitration (Again!)

Posted by Peter Janus on Thu, May 03, 2012 @ 12:28 PM

The NLRB General Counsel has issued an unfair labor practice complaint against 24 Hour Fitness, an employer in California. The NLRB is alleging that, as a result of its mandatory arbitration policy dealing with employment disputes, 24-Hour Fitness has violated the National Labor Relations Act. The policy in question required employees, when hired, to waive their right to participate in class actions against 24 Hour Fitness. However, the employees were allowed 30 days to opt out from this restriction by submitting a specific form to the company.NLRB

The General Counsel has taken the position that this opt-out procedure is unlawful because it forces the employees to take exception to the mandatory arbitration policy on class actions very shortly after they are hired. In other words, in the view of the NLRB, the employer's policy constitutes unlawful coercion because the newly hired workers are going to be reluctant to identify themselves as potential “troublemakers” in the event they want to preserve their rights to file or join in a class action lawsuit or arbitration against 24 Hour Fitness.

In a previous case, D.R. Horton, Inc., which was decided earlier this year, the NLRB held that it was unlawful for the employer in a mandatory arbitration agreement to impose a class action waiver upon its employees. The Board said this restriction violated the workers’ Section 7 rights to engage in protected concerted activities. That case is on appeal to the federal circuit court of appeals. However, it seemed to have left the door open for the type of opt-out procedure crafted by 24 Hour Fitness.

Bottom Line for Employers

While the case involving 24 Hour Fitness must still be decided by an administrative law judge,  the NLRB is communicating its strong opposition to employer mandatory arbitration agreements. This position is not shared by the courts, as reflected in particular by the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011), which upheld class action waivers in consumer arbitration agreements.

These issues involving mandatory arbitration policies in the employment setting will remain in a state of uncertainty until these cases can be resolved by the courts.

--Peter Janus represents employers in various industries and in the private and public sectors in all aspects of employment and labor relations law

Tags: NLRB, National Labor Relations Board, Employment Law

NLRB Posting Requirment Postponed (Again)

Posted by Bud O'Donnell on Mon, Apr 23, 2012 @ 12:22 PM


Last week, we predicted that the NLRB's "employee rights" posting requirement would be postponed. Sure enough, the Board has announced that, in light of the DC Circuit Court of Appeals recent enjoinment against the posting requirement, this new regulation has been delayed. NLRB

Therefore, the April 30, 2012 deadline for employer implementation of this rule is no longer in effective. Employers, however, should remain vigiliant, as its likely the Board will continue to press this issue.


Tags: NLRB, National Labor Relations Board