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Employment Blog

The United States Senate has confirmed Lauren McFerran as the fifth member of the National Labor Relations Board. The Board now stands fully staffed with a majority being labeled pro-employee. This means “beware” for employers.

The confirmation of Lauren McFerran as Obama’s appointment to the National Labor Relations Board sets the stage for more pro-union and pro-employee decisions from the Board. As we have blogged over the past twelve months, a number of NLRB decisions have been issued recognizing an employee’s Section 7 rights, particularly in the area of speech and use of social media to complain about working conditions. Other Board decisions have struck down employer policies that restricted the speech and activities of employees or supposedly, discouraged employees, from engaging in union organizing activities. We can anticipate these types of decisions will continue to be issued by the Board.

Perhaps the two most important Board actions that will affect employers in the near future are:

  • The Purple Communications Decision which held that employees have the right to use an employer e-mail system for union organizing activities and that limitations on the use of a business e-mail system can only be focused on conduct that could impact the security of the e-mail system;
  • The new “quickie” election regulations that will take effect in April and require employers to react very swiftly to any union election petition filed to organize a large group or small group of employees. Employers will have a very limited time to communicate its position that a union is not necessary in the workplace.

These actions by the NLRB may be subject to further legal challenge but have the potential to significantly impact the workplace environment. Employers must be very careful to recognize and understand the need to be sensitive to workplace communications and employee activity.