By Wendy N. Powell
Creating the most significant policy change to strengthen union organizing power and weaken employers since the creation of the National Labor Relations Act (Wagner Act of 1935), the National Labor Relations Board (NLRB) gave labor unions a boost that will enhance their organizing power while limiting the time for employers to communicate with their staff.
Labor organizers will also be entitled to access systems and personal information about employees.
The NLRB exists to protect and regulate the National Labor Relations Act. The board protects employee rights to form and join unions and to also protect the rights of those who decline to unionize. Employers and labor unions cannot restrain or coerce employees who exercise their rights.
The NLRB has provided significantly more power and leverage to labor unions on three major fronts:
They voted to provide e-mail addresses, work schedules, and personal contact information to unions in the organizing process;
Employers’ e-mail systems will be accessible to union organizers and employees for purposes of communication about working conditions and organizing strategy;
Elections will be held as soon as “practicable”, changing the current rule of no sooner than 25 days from notice of election. Elections could happen as soon as ten days. This eliminates time for employers to communicate and respond to their employees prior to an election. Further, employers will not be able to challenge employee lists for potential bargaining units until after a certification election.
These significant rule changes will create a new dustup about protection of employees’ personal information. And in the reversal of a long standing rule from 2007 that employees and labor unions could not utilize their employer’s e-mail system to communicate about union organizing, employees will now be able to use their employer’s e-mail system for campaign organizing and discussing concerns in the workplace. Labor unions previously were provided with employee’s home addresses.
Employers are custodians of significant personal information about employees and must maintain strict rules of confidentiality. This opens a whole new playing field in debate about the ability of employees to protect their information if they so desire.
In this age of warnings about personal data protection, the NLRB is providing the otherwise protected information to labor unions for marketing purposes. Keep in mind the fact labor unions are private entities, not public sector organizations.
Access to the employer’s e-mail system cannot be denied to union organizers. The caveat—they must use the system on non-work time. This change will clearly setup a property rights challenge.
We all know that e-mail involves the process of sending and retrieval. If someone sends a message on non-work time, the recipient could read the contents during their work time, creating possible violations and consequences. Non-work time typically includes lunch and break time but that has not been specifically defined in this rule change. In order to comply with the new Labor Rule, employers will need to review their policies to permit employees to use their company systems during non-work time.
Will the public question the sharing of employees’ personal information with labor organizations in policy dictating that business systems can be utilized for organizing?
NLRB Chairman Mark Gaston Pearce said in a statement:
“Simplifying and streamlining the process will result in improvements for all parties. With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.”
This rule change is much more than “simplifying and streamlining”. It is a dynamic change that limits time for employer communication, for establishing challenges prior to an election, and for providing opportunities for labor unions to utilize their systems.
What controls and protection are placed upon the information provided to labor unions? This remains a burning question. But what would happen to the personal data after an election if employees choose not to organize? Will it be destroyed or can it be sold, marketed, and stored? There is no provision in this new rule for maintenance and safety of that information, creating a serious concern about personal protection.
There is no provision or law to enable employees to opt out of sharing their personal information. Of course there is a law that protects the privacy of federal employees but there is no overall protection of that option.
Employers must review policies to make sure there is no prohibition for employees to use their work e-mail during non-working hours to discuss workplace concerns and union organizing.
Employees have the right to make informed decisions about forming and joining unions. They also have the right to protect their personal information from being shared should they choose to do so. Controls should be put into place to assure protections before releasing untethered information. We should expect as much.
For more information about the Wagner Act of 1935, visit the NLRB government Web pages.
About the Author
Wendy N. Powell is the author of the critically acclaimed Management Experience Acquired: Necessary Skills for Successfully Managing Any Employee. Her book is now available on e-book sites. She has been featured on ABC, Fox, and NBC and talk radio as a management and career expert. Powell writes for a number of publications, including a column at The Huffington Post.
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