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.”