In perhaps one of its boldest moves, on December 11, the National Labor Relations Board (NLRB) overturned existing precedent and held that employees have the right to use their employer’s e-mail system for Section 7 concerted activity, including union-organizing activities, during nonbusiness hours. The decision obviously affects employers’ policies on employee e-mail use.
As background, the NLRB previously held in Register Guard, 351 NLRB 1110 (2007), that employers could bar employee use of their e-mail systems for nonbusiness purposes, including union or other communications protected under Section 7 of the National Labor Relations Act (NLRA), so long as the employer does so on a nondiscriminatory basis. In other words, the employer did not have to let employees use its e-mail system when it came to union business, including organizing campaigns.
In an about-face, the General Counsel of the NLRB informed employers that the Board wanted to implement a new rule that employees may use employer e-mail for union or other Section 7-protected purposes so long as doing so does not impede production or workplace discipline. The Board issued a notice in the case, Purple Communications, Inc., Case Nos. 21-CA-095151, 21-RC-091531, and 21-RC-091584, inviting interested parties to file amicus briefs by June 16, 2014.
After receiving numerous amicus briefs and holding a congressional hearing, the NLRB announced on September 24, 2014, that it was going to “hold” the issue “for further consideration.” It found that the employer in Purple Communications, Inc. violated the NLRA on other grounds, and therefore, it was not necessary to consider the e-mail issue.
Apparently, after further consideration, the NLRB decided to reverse Register Guard. According to the decision, “the workplace is ‘uniquely appropriate’ and ‘the natural gathering place’ for such communications and the use of e-mail as a common form of workplace communication has expanded dramatically in recent years.”
“Consistent with the [NLRA] and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of e-mail for statutorily protected communications on nonworking time must presumptively be permitted by employers [that] have chosen to give employees access to their e-mail systems.”
So now, we must allow employees to use company assets as they see fit? How does this fit into the “Official use only” category? So we now consider this action as protected activity, what’s next, posting negative Facebook comments on company assets? Will this expansion ever stop.
And after thinking more about this…..Can the employer be held liable when an employee makes a harassing comment via company email, or how about threats, I see this as a major infringement on employers right to control electronic media regardless of company concerns and policies.
Let’s test the logic: An employee during non-work hours sends a union-organizing email to collegues in the office. Since they are off duty, they will not see the email until the following morning when they return to work. Presumptively, they will need to ignore the email until they are on break, on lunch or have completed their shift. While the distributor may be off work, the receiver is on duty when the distribution is acutlaly completed. Whatever happened to “no distribution, no solicitation during work hours” premise.
I disagree with the NLRB’s decision to allow unions to utilize company technology assets. The law clearly defines that businesses cannot interfere with union organizing efforts however, to force employers to allow the use of its own assets in assisting that organizing effort crosses a line that brings into question the rights of employers. Simply to state that given employees have access to email is justification for authorization of use is like saying that the union should have access to other assets, such as company vehicles because employees use them for company business. Does the employer have access to union assets? After-all its employees are members of the union. I’m sure this kind of logic would never fit with the Union.