Unionization of Home Based Employees, Quirky Question # 91

Quirky Question #91:

I own a company with a nationwide work force, and all of our employees work out of their homes.  I am hearing rumors that these employees may try to organize a union.  Is this possible?  Aren’t unions for employees working at a single factor or facility?  Once my employees are hired, we meet as a group only once a year.  For the rest of the year, in fact, virtually all of our communication is over e-mail.  If the rumors are true and they can try to form a union, what can I do to convince them?

Dorsey’s Analysis:

Unions aren’t just in factories anymore.Actually, they haven’t been for decades. Employees in virtually all sectors of the economy have organized to form unions, as is their right under the National Labor Relations Act. Amazingly, this can include employees scattered over a wide geographical area, as long as those employees constitute an appropriate bargaining unit (generally, employees with substantially mutual interests in wages, hours, and conditions of employment).

Thus, when an appropriate unit of scattered employees collectively exercise their desire to organize by submitting signed authorization cards, the National Labor Relations Board will hold a mailbox election, much like many states’ electoral contests recently have been conducted. [Note this all might change should the Employee Free Choice Act become law, a topic for another day.] Ballots are mailed and must be returned by employees within a certain period, typically a couple weeks.

As for your desire to convince your employees not to unionize, many of the normal rules around keeping an election free from pressure and coercion are quite different in the mailbox ballot setting. For example, in normal live elections, neither the union nor the employer may make election speeches to massed assemblies of employees within 24 hours before the scheduled vote. This rule, enunciated by the National Labor Relations Board over fifty years ago in its Peerless Plywood decision, was meant to protect employees from being forced to listed to speeches on the eve of an election – much like those negative 30-second television spots in public office elections – that might “destroy freedom of choice.” Either party may still distribute literature during that period, though. The rule is most applicable to employers forcing employees to meet and listen to speeches on company time, but has been applied to creative unions that, for example, drive around factories with mounted speakers blaring pro-union messages.

In the mailbox ballot context, the Peerless Plywood rule is quite different. Instead of barring mass communications within 24 hours of the vote, the rule bars such communications beginning at the time the ballots are mailed until ballots must be returned. Thus, rather than a 24-hour rule, it could amount to a two or more weeks of relative silence. Yet, with employees scattered all over the country, it’s hard to contemplate a massed assembly where employees are forced to listed to speeches.

You state that virtually all communication with your employees is done electronically. The Board and courts in more recent years have addressed similar situations – although not in the mailbox election setting – and have applied the Peerless Plywood rule rather leniently. In one case, an employer was permitted to send individual employees electronic “Vote No” messages on their mobile devices. Virginia Concrete Corp., 338 NLRB 1182, at *9 (2003). Although the employees could not avoid seeing the message, it was analogous to campaign literature in that it was not audible and could be deleted or scrolled past if the employee desired. In another case, a union agent allegedly programmed a screen-saver on a widely visible computer in the employer’s workplace to transmit an anti-union (and, in this case, pro-religious) message to employees. See Mail Contractors of America, Inc., 122 Fed. App’x 635 (4th Cir. 2005) (“VOTE YES LOCAL 470 AND JESUS WILL FORGIVE YOUR SINS.”). Again, the court held the message amounted to the distribution of campaign literature.

In addition to the Peerless Plywood rule, the Board also prohibits electioneering in polling places. See Milchem, Inc., 170 NLRB 362 (1968). Under the Milchem rule, it must be shown a party engaged in the equivalent of “prolonged conversations” with employees. See NLRB v. WFMT, 997 F.2d 269, 274-75 (7th Cir. 1993). The application of this rule is rather obvious in the live election setting; in the mailbox setting, it’s less than clear.

While no Board or court decision has overturned a mailbox election based on the Milchem rule; one case did analyze communications to employees during the mailbox balloting period under the test. In Mail Contractors of America, the employer claimed the union sent a pamphlet to the homes of individual eligible voters. The court assumed without deciding that the Milchem electioneering prohibition could apply in the mailbox balloting situation, but held the evidence was insufficient to support the employer’s assertion that pamphlets were sent to all eligible voters.

In this new fluid and electronic landscape where the old rules don’t seem to apply, it’s hard to tell what the Board would do in any given case of alleged improper electronic communication or electioneering. It appears that electronic communications with employees during the Peerless Plywood period are generally permissible, since employees are not required to read particular e-mails, and those inaudible messages can quickly and easily be deleted and largely ignored. What if the employer includes a link in an e-mail message to a speech from the company president posted on Youtube or the company’s intranet? Again, probably permissible, since watching the video is voluntary. But programming computers so that the video automatically appears when the computer is booted up probably would cross the line. And what if the employer sends e-mails every day over the entire balloting period? There certainly is an argument to be made that this would amount to a “prolonged conversation” with employees.

The safe recommendation is probably that, during the Peerless Plywood period, the employer should send text-only e-mails on an infrequent basis, and do so using a bcc format so it appears to individual employees that the e-mail is directed at them and not at a “massed audience.” Depending on the employer’s appetite for risk and technical sophistication, however, many more means of fully harnessing electronic communication can be imagined, whether in the mailbox ballot or a live election context. One can be sure unions are brainstorming these same ideas themselves.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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