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NLRB Invites Input on Using Employers’ E-mail for Organizing
 

By Allen Smith  5/8/2014
 

The National Labor Relations Board (NLRB) expressed interest in overturning a decision that bars employees from using their employer’s e-mail for union organizing purposes on April 30, 2014, inviting briefs to address the following questions:

  • Should the board reconsider its decision in Register Guard, 351 NLRB 1110 (2007), that employees do not have a statutory right to use their employer’s e-mail for organizing purposes?
  • If the board overrules Register Guard, what standard 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 these questions, to what extent should the impact on the employer of employees’ use of its electronic communications technology affect the issue?
  • Do employee personal electronic devices, social media accounts and personal e-mail accounts affect the proper balance between employers’ rights and employees’ organizing rights to communicate about work-related issues?
  • What other technological issues concerning e-mail or other electronic communications systems should the board consider, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided?

Bulletin Board Comparison

Register Guard extended an age-old doctrine about workplace solicitation and applied it to the virtual world,” according to Steve Bernstein, an attorney with Fisher & Phillips in Tampa, Fla.

Employers have the right to restrict organizing during working hours to nonworking areas.

“That doctrine applies to e-mail as well,” he said. If an employer treats it like a bulletin board with its use restricted to business purposes well before a union shows up, then it can restrict its use to business purposes.
 
But if it allows exceptions, such as permitting employees to sell Girl Scout cookies through e-mail, it can’t prohibit using e-mail to circulate a message about union meetings, he added.

Erosion of Property Rights

The labor movement says it’s unfair to give the employer a monopoly on workplace communication, and is opposed to Register Guard, Bernstein noted in a May 7, 2014, interview.

Also, if employees are free to use social media for concerted activity, why not e-mail, when e-mail inevitably is used for personal purposes from time to time, labor may argue.

The fight against Register Guard is “part of a broader move to erode private property rights and move toward equal access,” Bernstein said.

The NLRB is just considering overturning Register Guard at this point, at the general counsel’s and AFL-CIO’s suggestion in Purple Communications v. Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091531, 21-RC-091584.

Consequences if Decision Overturned

But if it is overturned, employers can expect a number of changes, Bernstein noted, including:

  • Employers drastically rewriting electronic policies, whether a union or nonunion company. Many policies have language prohibiting the use of e-mail for any purpose that is not work-related. If Register Guard is overturned and such language is left in policies, it could have a chilling effect and constitute an independent violation of the National Labor Relations Act.
  • Employees’ productivity being affected by more union organizing on company e-mail.
  • Unions fueling much more union organizing with the help of company e-mail.

The Register Guard holding “could be the first of many doctrines” to get a second look and ultimately be overturned, Bernstein concluded.

Briefs of up to 25 pages are due with the NLRB on or before June 16, 2014. All briefs are to be filed at http://mynlrb.nlrb.gov/efile.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

 

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