By Kara M. Maciel and Lindsay A. Smith
On April 30, 2014, the National Labor Relations Board (the “Board”) invited interested parties to submit amicus briefs addressing an employee’s right to use an employer’s electronic communications system for Section 7 activity in the case of Purple Communications Inc. Based on a prior Board decision in Guard Publishing Co. d/b/a Register Guard (2007), employers are not currently required to allow employee use of their e-mail systems for protected, concerted activities because in that case the Board held, “employees have no statutory right to use the Employer’s e-mail system for Section 7 purposes.” The Board has decided, however, to reconsider its findings in Register-Guard as it evaluates a recent decision from an administrative law judge (“ALJ”) resolved in line with this precedent.
On October 24, 2013, the ALJ presiding over the Purple Communications case dismissed an allegation brought by the union, Communication Workers of America (“CWA”), that the company had committed an unfair labor practice. He found that the company had not violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by maintaining rules prohibiting employee use of electronic equipment and systems for anything other than work purposes. Board General Counsel Richard F. Griffin and the CWA filed exceptions to the ALJ’s decision. They urged the Board to overrule Register Guard and adopt a new rule that guarantees employees, who are permitted to use company e-mail for work purposes, the right to use it for Section 7 activity, subject only to the company’s need to maintain production and discipline.
In opposition, counsel for Purple Communications has said that the Board’s consideration of overturning Register Guard is “disturbing” because of the employer’s property interest in an e-mail system developed and used for business purposes. Giving employees the right to use company e-mail systems for organizing purposes would compromise an employer’s ability to monitor employee use and any potential abuse of these systems because Board precedent generally prohibits employer surveillance of employee Section 7 activity. Beyond an employer’s property interests, this decision is also particularly problematic in light of the Board’s recently proposed changes to its election rules. As proposed, these rules would require employers to provide unions with employee e-mail information during organizing campaigns, which may include work e-mails. Therefore, employer provided e-mail systems could become the new platform for union organizing activities depending upon the outcome of this case.
In an effort to weigh its options for instituting new law regarding an employee’s use of company e-mail systems for Section 7 activities, the Board has asked both the parties in the Purple Communications case, as well as any interested amici to submit evidence in response to the following five questions:
- Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s e-mail system (or other electronic communications systems) for Section 7 purposes?
- If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
- In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
- Do employee personal electronic devices, social media accounts, and/or personal e-mail accounts affect the proper balance to be struck between the employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
- Identify any other technological issues concerning e-mail or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?
The Board has invited parties and amici to submit empirical and other evidence in response to these inquiries. Any interested individuals and/or entities may submit briefs in this matter on or before June 16, 2014. Considering the extensive impact this decision could have on employers, briefs presenting arguments against overruling Register Guard and evidence to support such claims will be essential in persuading the Board to examine the repercussions for employers and either maintain the status quo or, at the very least, establish a narrow exception.