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NLRB Revisits Employee Use Of Work E-Mail For Union Purposes
By T. Christopher Bailey on May 20, 2014 at 1:34 PM

EmailThreatening to overturn current Board precedent, the National Labor Relations Board (“Board” or “NLRB”) has invited interested individuals and organizations to submit briefs addressing whether employees should have the right to use employer-provided e-mail and electronic communications systems for union organizing and any other activity protected by the National Labor Relations Act (“NLRA”). A successful effort by the Board will require both union and non-union employers to review their communications policies to ensure compliance with the NLRA.

Current Law

In Guard Publishing Co. d/b/a Register Guard, the Board announced its current standard. The Board reaffirmed its long-standing principle that employees have no statutory right to use an employer’s equipment or media for union activities. Further, the Board concluded that unless the employer had permitted employees to send emails soliciting support of other groups or organizations, the employer’s policy prohibiting emails soliciting support of the union was not discriminatory. The Board acknowledged that the employer had permitted employees to send a variety of personal, non-work related emails, but found these emails to be sufficiently different in nature from emails soliciting support of the union. Accordingly, absent evidence that an employer had allowed employees to send emails supporting other organizations, an employer could lawfully restrict emails soliciting support for the union.

NLRB’s Latest Proposal

 Following a recent Administrative Law Judge’s decision which followed Register-Guard, NLRB General Counsel Griffin and the Communications Workers of America filed exceptions urging the NLRB to overturn Register-Guard and find that employees permitted access to an employer’s email system be permitted to use that system for union organizing and other union activity, subject only to the employer’s need to maintain production and discipline. This position, if adopted, would mean that employees could use a company’s email system for union activities, even if the employer otherwise restricted employees from using the employer’s email for non-work purposes. The only restriction an employer would be permitted to implement would be a restriction on sending such emails during work hours, provided that the employer could show that it similarly restricted other non-work related emails during work hours. The Board’s proposed position would likely allow union organizers unlimited access to an employer’s email system.

While these exceptions are pending, the Board has invited interested parties to submit their views on the Register-Guard decision and whether or not it should be overturned. Briefs must be submitted by June 16, and should answer five questions:

  • Should the Board reconsider its conclusion in Register-Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
  • If the Board overrules Register-Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
  • In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer's electronic communications technology affect the issue?
  • Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers' rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  • Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register-Guard was decided. How should these affect the Board's decision?

If you have thoughts about this potential change in the law, now is the time to voice them to the NLRB. If you have questions about how to do so, please reach out to the Employment and Labor Group.

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