Does your company provide email access to its employees? Are there restrictions on how and when email may be used? These issues are addressed in the National Labor Relations Board’s (NLRB) December 11, 2014 decision in Purple Communications, Inc., which affects both non-union and union employers. In Purple Communications, the NLRB reversed its position and held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The employer can rebut this presumption by demonstrating that special circumstances necessitate a specific restriction to maintain production or discipline. Although this special circumstances justification could encompass a total ban on nonwork email use by employees, this would be a “rare case.”

The handbook provisions at issue in Purple Communications prohibited employees from using company email to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the company” or to send “uninvited email of a personal nature.” In reaching their decision, the NLRB reasoned that the ability of employees to communicate in the workplace is central to exercising their rights under the National Labor Relations Act, especially during an initial organizing campaign. Due to significant changes in technology, email is a critical means of communication which now serves as “the natural gathering place pervasively used for employee-to-employee conversations.”

This decision means that employees who have access to company email may use that email system during nonworking time in order to actively campaign on behalf of a union that is attempting to organize the company, even if such a position is contrary to the position of the company. The decision, however, does not require employers to provide email access to employees where employers have otherwise chosen not to grant any email access at all. Similarly, the decision does not require the company to provide access to the email system to third parties like a union. The decision also does not prevent employers from continuing to monitor employee use of company computer and email systems for legitimate management reasons. The NLRB specifically limited this decision to email without addressing other forms of electronic communications.

Employers who are concerned about running afoul of the Purple Communications decision should review their handbooks and any policies addressing employee use of company email systems. Employers should also review those classifications of employees to which they provide email access.

Unions, in order to increase membership, are now attempting in some cases to represent employees in small “micro-units” as opposed to the traditional approach of representing employees throughout an employer’s facility. Micro-units come into existence when unions “pick off” employees in certain departments, and claim that these departments should be a bargaining unit apart from their co-workers. Unions have employed this strategy because it is generally easier to organize a small number of employees rather than an employer’s entire non-supervisory workforce. (To organize a 15 employee department in a 150 employee workplace, the union would need only 8 supporters instead of 76!) The strategy undermines the traditional criteria that governed whether a bargaining unit is appropriate by allowing unions to “slice up” a workplace by targeting only those workers who agree with them. It also exposes employers to dueling unions, each representing a different department.

Micro-units were first employed in the health care industry, but they now have moved to other industries. For example, on July 22, 2014, the NLRB ruled in Macy’s, Inc., 361 NLRB No. 4 (2014), that cosmetic and fragrance workers at a Macy’s store in Massachusetts were allowed to form a collective bargaining unit for their department alone.

A week later, in Neiman Marcus Group, Inc., 361 NLRB No. 11 (2014), the Board again approved the micro-unit concept generally, but ruled that a unit that was composed of all full-time and regular part-time female shoe associates in the second floor Designer Shoe Department and in the fifth floor Contemporary Shoe Department was not an appropriate unit, because the employees lacked a “community of interest.” Importantly, the NLRB noted that the boundaries for the proposed unit did not resemble any administrative or operational lines drawn by the employer. The sales associates on the second floor worked in their own department but the sales associates on the fifth floor were part of a larger Contemporary Sports Department.

Although the NLRB has clearly endorsed micro-units, employers are not powerless, and they can take steps if they wish to make it more difficult for unions to splinter small groups of employees. For example, employers can cross-train and encourage skill diversity so that employees are more interchangeable. Moreover, rather than having many small departments, employers can have fewer but larger departments with the same supervisors supervising more groups of employees.

The NLRB, in a 2-1 decision Iron Tiger Logistics NLRB 10-23-12.pdf, extended the duty to respond to union requests for information to cover requests for information that is found to be irrelevant to legitimate bargaining concerns.  Prior cases had found employers who delayed in turning over relevant information to have violated the Act by delaying their responses.  In Iron Tiger, the Board majority (Chairman Pearce and Member Block) found that even if the information requested turns out to be irrelevant, the employer has a duty to respond in a timely fashion on pain of violating its duty to bargain in good faith.  The policy justification for the rule is that the employer can avoid a dispute and resulting Board charges if it states its position right away and allows the union to withdraw or modify its request.  They observed that, had the employer done so in the case before them, “an unnecessary dispute could have been avoided.”

The dissenting Board member (Member Hayes) agreed that it would be preferable for an employer to respond quickly, but he could not find a duty under the Act to respond to requests for irrelevant information.  He stated, “Ultimately, requested information is either legally relevant to a union’s representative duties, or it is not. If it is not, then the statutory duty to bargain in good faith is not implicated by the request or the employer’s failure to respond timely to the request.”  Member Hayes also observed that the Board majority’s decision gives unions yet another tool “to hector employers with information requests for tactical purposes that obstruct, rather than further, good faith bargaining relationships.”

Employers who are confronted with demands for information that they believe seek irrelevant information should therefore say so without undue delay.  The alternative is to risk an unfair labor practice finding.  In connection with some other activity (such as a strike) a finding of a failure to bargain by refusing to give a timely response to an improper union information request could be enough to turn an economic strike into an unfair labor practice strike.  The consequence for an employer who responds to the strike by hiring replacements could be significant.

This post was coauthored by Inna Shelley.

The National Labor Relations Board decision in the Specialty Healthcare case has continued paving the way for the certification of increasingly fragmented micro bargaining units. On May 4th, the director of NLRB Region 2 approved a collective bargaining unit of full-time and part-time salespersons in the women’s shoe departments on the 2nd (Designer Shoes) and 5th (Contemporary Shoes) floors of a Bergdorf Goodman department store. The approved unit would likely consist of less than 12% of the store’s sales associates and an even lesser percentage of the store’s non-supervisory workers. The full text of this Neiman Marcus Group decision is available here.

Neiman Marcus Group continues the recent Board trend of allowing fragmented micro-units. Such units allow unions to gain a foothold by organizing only an increasingly small subset of employees. Unions no longer have to expend resources to organize the bulk of an employer’s workforce as long as they can identify any group of employees who share an alleged “community of interest” under the traditional criteria. This analysis is often quite subjective and considers whether employees (1) are organized into separate departments (2) have distinct skills and training (3) have distinct job functions or whether there is job overlap (4) are functionally integrated with other employees (5) have frequent contact with other employees (6) interchange with other employees, and (7) have distinct terms and conditions of employment.

Under Specialty Healthcare, if a unit is found appropriate under the above standard, it will be recognized even though a larger unit would be even more appropriate. To successfully challenge a smaller unit, the employer must demonstrate that employees in a petitioned-for, smaller unit share an “overwhelming community of interest” with other employees in a larger unit.

In approving a unit of women’s shoe sales associates on two store floors, Neiman Marcus Group emphasized that salespersons in the shoe departments were paid on a different wage scale than salespersons in other departments. It also distinguished the sale of shoes from that of other merchandise, claiming that shoe salespersons needed different skills and training and that many of them had significant prior experience selling shoes before their hire. Shoe salespersons also made minimal sales of other merchandise and transfers of salespersons from other departments to shoes were uncommon.

It did not matter that sales employees across all departments were subject to the same personnel policies, including health benefits, vacation and holiday policies, evaluations, probation, or use of a common cafeteria. Interestingly, the regional director concluded that salespersons of men’s shoes should not be in the unit because men’s shoes were sold in the men’s section of the department store located across the street and there was allegedly little association between the men’s and women’s shoe salespersons despite access to a common cafeteria.

The decision also analyzed Specialty Healthcare’s Footnote 29, which stated that Specialty Healthcare was not meant to disturb special industry presumptions and occupational rules. There is, of course, a longstanding presumption in the retail industry that the appropriate unit is store-wide. While recognizing that industry presumptions must still be followed after Specialty Healthcare, the regional director rejected the retail industry presumption. Instead, the director relied upon isolated retail cases, including those with stipulated units and those finding that appropriate units consisted of all salespersons, as opposed to only those who sell particular merchandise. Thus, as long as an exception allowing a smaller unit can be identified in a particular industry, even via voluntary approval, employers may not be able to successfully rely on long-established industry practice to challenge a proposed fragmented unit.

Neiman Marcus Group also affirms that in the post Specialty Healthcare world, it is now increasingly difficult for employers to challenge a proposed micro-unit by claiming that there is an “overwhelming community of interest” with a larger employee group. Such an “overwhelming community of interest” exists only where almost every community of interest factor overlaps almost completely. Any perceived difference in job functions or other terms or conditions of employment may justify a bargaining unit of a small employee group.

As a result, employers may find themselves under the obligation to engage in collective bargaining with a multitude of splintered employee groups, in spite of vastly overlapping interests that do not quite rise to “overwhelming” by the Board’s assessment. Cases like Neiman Marcus Group demonstrate that when the Board said in Specialty Healthcare that its decision did not presage any major changes, it wasn’t quite telling the truth, the whole truth and nothing but the truth.

The United States District Court for the District of Columbia ruled that the NLRB’s new rules on extremely fast union elections had not been properly issued, due to lack of a quorum. While Member Brian Hayes participated in earlier portions of the rulemaking process, he did not participate in the final deliberations or vote upon the rule itself.  With only two other members of the Board in office at the time, that meant only two members acted.  Since a quorum for the Board to conduct business is three members, U.S. District Judge James Boasberg found the rule invalid.  He did not reach the other arguments raised by the plaintiffs in the case (the U. S. Chamber of Commerce and the Coalition for a Democratic Workplace).  In light of the nature of the ruling, the Board can elect to appeal, or it can take action upon the rulemaking record with a quorum, which it now can muster (at least assuming that the recess appointments made by President Obama are found to be valid.)  The order of Judge Boasberg is below.


The rule recently promulgated by the National Labor Relations Board requiring employers to post on bulletin boards and on their websites notices of employee rights partially survived a court challenge.  The U.S. District Court in Washington, DC permitted the Board to require the posters, but vacated the portions of the rule creating a new unfair labor practice of failure to post the notice and providing that the statute of limitations for filing unfair labor practice charges is extended if the employer did not properly post the notice.NLRB-Notice-Posting-Decision 03-02-2012.pdf  In the words of Judge Amy Berman Jackson:

The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The decision is subject to appeal, of course, and the likelihood is that both sides will appeal certain aspects of the decision.  At this point, it does appear that employers will be required to comply with the basic posting requirement as of April 30, 2012.  It is not clear that there will be any effective penalty for failing to do so, however.

The Office of the General Counsel for the NLRB has recently updated its memo summarizing recent social media decisions.  The memo provides a reference for employers regarding the limitations on disciplining or terminating employees based on comments they make on FaceBook and other social media sites.

The first case summary in the memo is telling.  The Board held that a collections agency violated the National Labor Relations Act when it terminated an employee for an expletive-filled FaceBook rant disparaging the company and its decisions.  The Board reasoned that the termination was unlawful, along with the company’s policy, which prohibited:

“[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”

The Board noted that the company’s written policy did not provide an exception for engaging in Section 7 rights (the rights of employees to engage in protected, concerted activity).

Of course, it remains to be seen how courts would regard a similar set of facts. Nonetheless, the memo serves as yet another reminder of the Board’s take:  An employee may have a federally-protected right to badmouth her employer.   Here, a key factor was that several of the employee’s co-worker FaceBook friends joined in the rant.  Hence, the exchange amounted to concerted activity according to the Board.

Earlier today the White House announced recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. The appointments were asserted to be recess appointments despite the fact that the Senate has not technically been in recess under the historical understanding of that term.  Indeed, Congress has gone out of its way to avoid being in recess specifically to prevent recess appointments being made. 

While the specific individuals appointed have not been objected to (and, in the case of two of the Board nominees, have not even been considered by any of the Senate Committees since their nominations were only recently announced), the positions must be filled for the agency to operate with full effectiveness.  Rich Cordray, a friend of mine and fellow Michigan State alum, is a very qualified person.  However, the Republicans do not want anyone to serve as Director of the CFPB because they oppose the broad, unchecked power of that agency.  As to the NLRB, without at least three members, the Board cannot take any official action. Since its recent actions have been opposed by most Republicans, they would prefer it be dormant.  It is certain that there will be challenges to this unprecedented assumption of appointment power by President Obama.  How soon the challenges will be resolved remains to be seen.  It is also certain that 2012 will continue to feature more fireworks.

While most Americans were out preparing for Christmas last week, the NLRB had some presents of its own.  For employers, the Board postponed its posting rule (which created a new unfair labor practice and potentially extended the statute of limitations) from January 31 to April 30, 2012.  For unions, the Board issued a decision that allows persons who write up employees for discipline and issue it to the employees to engage in pro-union electioneering.  The case, DirecTV U.S. DirecTV Holdings, LLC, was decided by a 2-1 margin.  The majority found that the three-tier review of recommended discipline, conducted by the employer to ensure conformity with company procedures and various laws, meant that the alleged supervisors did not “responsibly recommend” discipline.  This was true even though the percentage of recommendations adjusted during the reviews was very small (less than 10%).  They did not give any weight to the fact that the alleged supervisors actually administered the discipline.  The dissenter found that, based on a number of previous Board decisions, a review of recommendations initiated by alleged supervisors does not mean that they fail to meet the statutory test.  From a practical standpoint, there would be few modern employers who do not subject disciplinary recommendations from anyone in their organization to a  thorough review.  Failure to do so would result in needless mistakes in our complex employment system.

Finally, the Board itself received a “present” of sorts, when President Obama nominated two individuals to the Board. Sharon Block is a Democrat presently serving with the Department of Labor on its Congressional Affairs. She formerly worked for Senator Kennedy on the HELP Committee in the Senate.  Richard Griffin is the General Counsel of the International Union of Operating Engineers, and serves on the Board of the AFL-CIO Lawyers Coordinating Committee.

The NLRB has postponed the effective date for its new union organization rights posting requirement until January 31, 2012.  In its press release, the Board states that it decided to postpone the requirement, “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”  Further, the Board stated:

The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.

Although not mentioned in the press release, the postponement comes in the wake of the filing of at least three separate lawsuits pending in which organizations and interested parties have sought to block the posting requirement and challenge its legality, including the Chamber of Commerce, the National Federal of Independent Business and the National Association of Manufacturers.