NLRB Upholds Ban on Using Company E-Mail for Union Organizing

By Steven Bernstein and Claire Meharg © Fisher Phillips June 22, 2020

The National Labor Relations Board (NLRB) recently took the opportunity to double down on its reversal of the Purple Communications doctrine, holding that T-Mobile USA did not violate federal labor law by implementing a rule barring call-center employees from using the company's e-mail system to discuss union-organizing activities. The May 27 decision represents another step away from NLRB doctrine that had previously upheld the right of workers to utilize an employer's electronic communications systems to solicit co-workers for organizing purposes during nonworking time.

How Did the Board Arrive at the Decision?

The NLRB analyzed the issue under the framework of a December 2019 decision called Caesar's Entertainment, which provides that employers do not violate the National Labor Relations Act (NLRA) by restricting the nonbusiness use of its IT resources, absent proof that their e-mail systems furnish the only reasonable means for employee communications or evidence of discrimination. In accordance with that decision, employers may legally restrict the use of work e-mails and other electronic systems, even for organizing activities protected under Section 7 of the NLRA, provided that reasonable alternative communication means are available.

In the most recent decision, the board held that the employer was entitled to exercise its property rights to restrict use of its e-mail system for organizing purposes because there was "no indication in the record that the respondent's employees do not have access to other reasonable means of communication, and no party contends that the respondent's e-mail system furnishes the only reasonable means for the employees to communicate with one another."

To the contrary, the record contained detailed information establishing that the employees already had adequate and effective means to communicate with each other without the use of T-Mobile's e-mail system. For example, they had the options of oral solicitation during nonworking time, access to smart phones and social media, and personal e-mail accounts. The NLRB further held that T-Mobile was entitled to specifically address and reprimand employees for violating its e-mail restrictions.

What Does the Decision Mean for Employers?

The T-Mobile case demonstrates that the NLRB is committed to applying the Caesar's Entertainment standard in a straightforward manner. The burden for establishing a lack of alternative communication vehicles will be challenging for unions and their supporters.

In light of these rulings, you should evaluate your current policies to ensure that any limits on their equipment and IT systems are justified and sufficiently documented. Although the conduct at issue in the T-Mobile case occurred in 2015, the Caesar's Entertainment standard applies retroactively to all pending cases challenging employer's rules restricting the use of IT resources for nonwork purposes. If you have a pending matter before the NLRB, you should consult with your labor counsel to determine how these decisions will impact your case.

Steven Bernstein and Claire Meharg are attorneys with Fisher Phillips in Tampa, Fla. © 2020 Fisher Phillips. All rights reserved. Reposted with permission. 



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