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Miss This? Pair of December NLRB Rulings Made Union Organizing, Elections More Fair in the Digital Age


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A pair of end-of-year National Labor Relations Board (NLRB) rulings have modernized the agency’s approach to technology in the workplace and will make it easier for unions to organize using company email.  The rulings reflect corrections of previous decisions the board made which ultimately came to pass as mistakes, born of a myopic view of technology.  

In the Purple Communications ruling the NLRB overturned a Bush-era decision in Register Guard which allowed companies to prevent workers from using email for all non-work topics, including organizing.  At time of the decision some board memberd acknowledged that it lacked vision.  Moshe Marvit explained the new ruling for In These Times:

Recognizing the changing nature of the workplace, Liebman and Walsh [in 2007] explained that email was becoming the new water cooler, and that the Board fundamentally misunderstood how email systems work. In a passage that reads almost as if written by a millennial to her out of touch grandparents, the two members explained in basic terms to the Board majority the difference between emails and more traditional communication media: “If a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced. If an employee is using a telephone for Section 7 or other non work-related purposes, that telephone line is unavailable for others to use.”

Emails, they explained, were different, because many employees could use the system simultaneously, subject lines clue the employee into whether to read or dispose of the message, and the marginal cost for an email is almost zero.

Yesterday, the Board vindicated Liebman and Walsh’s dissent and held that the majority’s 2007 decision was “clearly incorrect,” and that it “undervalued employees’ core Section 7 [of the National Labor Relations Act] right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Therefore, employees who have access to work email can use the email system on nonwork time to discuss the terms and conditions of their employment and engage in other organization activity.

In correcting itself yesterday, the Labor Board finally recognized the central place that digital communications has in workers’ lives. The Board recognized that email is different than other employee equipment, and that most employers tolerate the personal use of employer email.

The other ruling the NLRB made before closing the books on 2014 pertains to communications during union elections.  Marvit explains the impact of this rule in his piece as well:

The new rule includes a number of significant benefits for workers who are organizing, including postponing employer litigation over union election issues until after the election takes place to eliminating the waiting period between the time when an election is ordered and when it occurs (the time when many bosses carry out their union-busting campaigns through tactics like firings or threats of closing down a workplace).

But perhaps the most overdue change is the modernization of the “Excelsior List” rules. Prior to today’s rule, employers were required to turn over to the union an Excelsior List, which contained the names and home addresses of workers within seven days after a union election is ordered, so that the union can effectively communicate with all the workers it seeks to represent.

The new rule requires the employer to also turn over any employee email addresses and telephone numbers it possess, and shortens the amount of time management has to turn over the list to two days.

Follow the incredibly sharp Marvit on Twitter: @MosheMarvit


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