NLRB Considers Allowing Employees To Use Company E-mail For Union Organizing Activities

The National Labor Relations Board’s (“NLRB”) General Counsel and the Communications Workers of America, AFL-CIO (“CWA”) have asked the NLRB to overrule the Board’s previous ruling regarding workers’ rights to use employer e-mail and other electronic communications systems during organizing and other union activities.  Employers are allowed to restrict employee use of e-mail for all non-business purposes.  Under the Board’s current holding, this includes restrictions prohibiting use of company e-mail for union organizing and other protected concerted activity.  In Register Guard, 351 NLRB 1110 (2007), the Board specifically held employees have no statutory right to use an employer’s e-mail system for Section 7 purposes.

The current push to overrule Register Guard follows a 2013 decision by Administrative Law Judge Bogus in Purple Communications, Inc., JD-75-13.  ALJ Bogus dismissed the CWA’s case alleging the employer’s rule prohibiting employee use of equipment for non-business purposes unlawfully interfered with employees’ Section 7 rights, stating that the employer’s rule was not an improper infringement of Section 7 rights under current Board law.  Although ALJ Bogus did not specifically reference Register Guard, the ruling has prompted the CWA to ask the Board to overrule its 2007 decision permitting employer prohibitions on use of employer e-mail.

The Board’s General Counsel agrees and has also requested the Board adopt a new standard which permits employees to use employer e-mail for Section 7 activity.  The NLRB is considering the General Counsel’s exceptions and proposed rule and has invited briefs from interested parties asking various questions, including: should the Board reconsider its conclusion in Register Guard; if so, what standards should be put in place and what restrictions may an employer place on access; how should the impact on the employer affect the issue; do employee’s personal electronic communication systems and social media affect the issue; and requesting any other issues that should be considered in the Board’s decision.

The Board’s request for briefs indicates it will likely make major changes to the current policy.  The Board’s change in policy could prevent employers from prohibiting employee use of company electronic communication systems to engage in Section 7 activities while on non-work time.  Consistent with the Board’s recent application of its standards to all employers, regardless of whether the company is unionized, a change in this rule would likely apply to all employers utilizing e-mail or other forms of electronic communications.

If the Board overrules Register Guard, employers must be prepared to review and implement policies which do not violate the Board’s new standards, whether the company employs union workers or not.  To ensure your policies comply with any decision issued by the Board, the experienced labor attorneys at McMahon Berger can help.   For a consultation, contact us today.

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