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Blizzard Warning: NLRB Seeks to Bury Employers Under New Rulings and Regulations

After a year spent digging out from revisiting decisions invalidated by the Supreme Court’s ruling in Noel Canning, the National Labor Relations Board issued two blows to employers in the last two days. Yesterday, the NLRB issued the long-awaited decision in Purple Communications, Inc., granting employees the federally protected right to use employer e-mail systems for union organizing and other protected concerted discussions. Today the NLRB issued the final election processing rules.

Combined, these two actions will have far reaching consequences for all employers, both those already with unionized employees but more importantly for those who don’t yet have a unionized workforce. Employers must immediately revise their policies and practices to permit (or at a minimum not prohibit) employees who already have access to the employer’s e-mail system to use that system during their non-work time for protected concerted discussions and solicitations.

The NLRB’s final election rule will be published in the Federal Register on December 15, 2015, and will be effective (absent successful legal challenge) on April 15, 2015. The rules will have the practical effect of eliminating the historic 42-day campaign period, provide greater access to employee personal contact information and in short are designed to allow unions to get to an election faster and prevent employers from mounting an effective informational campaign as they have done under the traditional 42-day period. The rules require the following:

  • Pre-election hearings to be held within 8 days of a petition being filed (compared to the traditional 10 to 14 day period);

  • Employers to submit a statement of position outlining issues in the hearing at least 1 business day prior to the hearing (completely new);

  • Employers to submit a list of prospective voters inclusive of their names, job classifications, shifts and work locations at least 1 business day prior to the hearing (completely new);

  • Only issues necessary to determine whether it is appropriate to hold an election will be litigated in a pre-election hearing;

  • Elections will not be automatically delayed for 25 to 30 days to allow for NLRB review of any request for review of a Regional Director’s Decision and Direction of Election as they were previously;

  • Employers will be required to submit a final and accurate list of eligible voters inclusive of personal phone numbers, e-mail addresses and home addresses within 2 business days of the Regional Director’s approval of an election agreement or decision directing an election (was 7 days and limited to names and home addresses).

© Copyright 2022 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume IV, Number 346

About this Author

Robert A Kaiser, Employment, Labor, Attorney, Armstrong Teasdale, Law firm

Bob Kaiser is a member of the Employment and Labor practice group representing emerging and mature businesses in labor and personnel-related disputes. Because employment and labor laws and regulations continue to evolve, he deftly guides management in creating “fences” and boundaries to assess risks and decrease litigation.

A portion of Bob’s practice includes traditional labor law, a focus he has had for more than 25 years. For small- to mid-sized organizations, he handles labor union relations such as union avoidance, collective bargaining, elections, strikes, picketing and other...

Shelley Ericsson, Labor, Employment, Attorney, Armstrong Teasdale, law firm

Shelley Ericsson provides practical, sophisticated advice to complex legal problems unique to the labor and employment arena.

In state and federal courts and before state, federal, and local administrative agencies, Shelley defends employers in matters involving claims of discrimination, harassment, retaliation and wages. With a deep knowledge of employment law policies and an eye on the ever-changing economic reality, she litigates matters such as Title VII, Section 1981, the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Americans with...