August 21, 2017

August 21, 2017

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National Labor Relations Board Considers Allowing Employees to Use Employers’ Electronic Communications Systems for Protected Activity

Employers often forbid employees from using company e-mail and other electronic communications systems for all non-business purposes.  Under current National Labor Relations Board decisions, such a blanket prohibition, which includes a prohibition on using these systems for Section 7 (i.e., union and other protected concerted activity) purposes is lawful as “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” Register Guard351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB571 F.3d 53 (D.C. Cir. 2009).    However, the NLRB’s General Counsel and the Communications Workers of America, AFL-CIO (“CWA”) argue such limitations should be held unlawful. They are asking the NLRB to overturn Register Guard and grant employees the right to use company e-mail to engage in union and other protected  concerted activities, such as trying to drum up support for a union or encourage employees to protest certain working conditions.

Purple Communications, Inc., JD-75-13 (Bogas, ALJ, Oct. 24, 2013), is the case providing them with the vehicle for this move. There, the CWA alleged the employer’s rule prohibiting employees from using its equipment for non-business purposes unlawfully interfered with employees’ rights. Without referring expressly to Register Guard, the Administrative Law Judge summarily dismissed the allegation, stating such a rule “is not, under current Board law, considered an improper infringement on Section 7 rights.”

The GC and CWA have excepted to the Judge’s ruling and have asked the Board to overrule Register Guard.  The GC has further requested the Board to adopt a new standard under which “employees who are permitted to use their employer’s e-mail for work purposes [would] have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.”

The General Counsel broadly asserts that a rule that “prohibit[s] employees from using Respondent’s equipment to engage in Section 7 activities such as organizing support for, or opposition to, a labor organization; or discussing, or attempting to discuss, workplace concerns with fellow workers” violates the NLRA.  In support of his position, the GC argues that technology has made “email . . . analogous to the water cooler” of years ago, around which employees would gather to talk about their personal and work issues:

Employees have a Section 7 right to communicate at work, and, in technological workplaces, email is the present day water cooler. In the last 10-plus years, the emergence and widespread use of email has transformed the manner in which many employees interact in the workplace. In many workplaces, technology has replaced face-to-face communication in a break room, cafeteria, or other traditional gathering places as the preferred method of communication. As employees increasingly use email as a primary mode of communication, email has, thus, become the “natural gathering place” for non-work-related communication.

The NLRB is considering the GC’s exceptions and proposed rule, and, in a move that many say signals the Board likely will be making a major policy shift, has invited briefs from the parties and interested amici on five questions: whether the Board should reconsider and overrule Register Guard,  what standard(s) of employee access to employer systems should be established and what restrictions on access should be put in place; whether the impact on an employer’s communications systems by employees’ use of the systems should be considered;  whether th existence of employees’ personal electronic devices and personal email and social media accounts should be considered by the Board; and  whether any other relevant technological issues exist which should be taken into account by the Board.

The Board’s ruling in this case could affect dramatically all employers utilizing electronic communications systems (and a great many do, regardless of whether their employees are unionized or not.) If the Union’s and the GC’s position in Purple Communications  is adopted, it is likely many employers will have to revise handbook rules and other policies that prohibit employees from using electronic communications systems for non-business purposes to allow for access.  Furthermore, employers probably would not be able to stop employees from using employer electronic communications systems to engage in Section 7 activities while on non-work time, unless such use interfered with the “need to maintain production and discipline”, which the employer would have the burden – likely a heavy one — of proving.

Jackson Lewis P.C. © 2017


About this Author

Robert J. Guidotti, Jackson Lewis, union grievances lawyer, representational campaigns attorney

Robert J. Guidotti is an Associate in the White Plains, New York, office of Jackson Lewis P.C. He counsels employers of varying sizes and industries in a wide range of labor and employment matters, including union grievances, representational campaigns, NLRB trials and other traditional labor matters.

Mr. Guidotti also assists and counsels organizations on items such as wage and hour audits, discrimination claims, employee handbook policies and other preventive strategies.

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...