NLRB Rule Review and Revised Policy May Stifle Unions' Organizing Activity
Author: Robert S. Teachout, XpertHR Legal Editor
August 7, 2018
The National Labor Relations Board (NLRB) signaled possible actions last week that may make it more difficult for unions to organize and communicate with workers and to fight decertification efforts.
First, the NLRB issued a request for comments about a rule that allows unions to use employers' e-mail systems to conduct union business. The rule established in Purple Communications Inc. requires employers to make their email systems available for employees during nonworking time to discuss their terms and conditions of employment, including engaging in union organizing.
The NLRB is considering revising its approach to this issue in a case involving workplace rules at a Las Vegas casino, Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino. In addition, the Board asked for comments on "employer-owned computer resources" other than email. The review was expected following NLRB General Counsel Peter Robb's December memo cancelling initiatives and rescinding memos issued by his Democratic predecessor.
Employees and unions may lose the right to use company email systems to discuss union business if the Board reverts to an earlier policy that generally allowed employers to prohibit workers from using company email for nonwork-related communications.
That same day, NLRB General Counsel Peter Robb issued a memo (GC 18-06) regarding unfair labor practice (ULP) cases opposing decertification efforts. Robb instructing regional offices not to oppose employees who are seeking union decertification from intervening in cases related to their decertification effort. Unions often file such ULP charges to stop or delay a decertification vote. Employees who have filed the decertification petitions generally have not been considered a party to the ULP case.
According to the memo, an individual who has filed a decertification petition has a sufficiently direct interest in the outcome of related ULP litigation such that opposition to his or her motion to intervene is unwarranted.