The meaning of the NLRB ruling on company email usage for union organizing

SYRACUSE — The National Labor Relations Board (NLRB) says employees with access to their company’s email system have the right to use it for communications about union organizing, wages, and working conditions, as long as it happens during “non-business” time.

 

The NLRB ruling on Dec. 11 came in a split decision, according to an article published the same day on the website for Reuters.

 

The case involved Rocklin, Calif.–based Purple Communications, Inc., a sign-language interpreting service and the AFL-CIO, the nation’s largest federation of trade union. 

 

The Dec. 11 NLRB ruling overturned a 2007 ruling from the same agency.

 

“The majority concluded that an employer that gives its employees access to its email system must presumptively permit the employees to use the email system for statutorily protected communications during nonworking time. But an employer can rebut the presumption by showing that special circumstances make its restrictions necessary to maintain production and discipline,” according to the NLRB website.

 

The ruling didn’t come as a surprise to Peter Jones, a labor and employment attorney with the Syracuse–based law firm Bond, Schoeneck & King, PLLC.

 

“I think the NLRB had signaled that they were very interested in taking a look at the Register Guard precedent from 2007, which this case overrules,” says Jones. 

 

He spoke with CNYBJ on Dec. 30.

 

The 2007 Register Guard case involved an Oregon publishing company which prohibited employees’ non-business use of its email network, according to the NLRB website.

 

The NLRB is a federal agency that oversees union elections and polices unfair labor practices. Companies have recently criticized the agency as “biased toward labor causes,” according to the Reuters story.

 

The NLRB remanded the case to an administrative law judge for reconsideration.

 

Jones reaction

After reviewing the ruling, Jones identified two concerns he had with the NLRB’s decision.

 

In his mind, the NLRB ruling creates a “presumption” rather than a right. It presumes that employees have access to email through an employer’s private email system.

 

“That presumption could create a lot of uncertainty for employers and unions and employees,” says Jones.

 

He contends the ruling raises questions such as — do employees have the right to use a company’s email system? Jones sees the ruling as the NLRB’s belief that employees do have the right and the employer can’t overcome the presumption.

 

“Whenever the prevailing legal authority is a presumption rather than a rule, people can always be unclear on it, so I think that’s one aspect of it that we’re going to see further litigation on,” he says.

 

His second concern focuses on company monitoring of its email system.

 

Employers typically maintain the right to monitor an email system, Jones says, especially when conducting investigations into misconduct. An email message on the company’s system could become a piece of evidence. 

 

For example, if one employee is accused of sexually harassing a co-worker, employers will typically look at the emails to see if they include any evidence to support the claim.

 

But, in the process of such an investigation, what happens if the employer stumbles upon email messages that indicate an effort aimed at union organizing?

 

“There’s a long standing NLRB rule that surveillance of organizing activity is prohibited, and so if employees can use the email system to engage in protected activities to solicit one another for union-organizing purposes and the employer lawfully monitors that system for a different purpose and discovers the union 

organizing, [then] what does that mean?” Jones asks. 

 

Employers also typically monitor for inappropriate use of the system, such as “excessive” personal use, which Jones says is “not really well-defined.”

 

He wonders if an employer would ever point to excessive personal use of email in the context of union organizing. 

 

“It seems to me that’s a very dangerous thing for an employer to react to, given that the board has said that employees have these rights,” he adds. 

 

Future cases

Jones also wonders if the courts may consider future cases that would result in the employer providing phones, copiers, or other property in a union-organizing effort.

 

“As the law stands right now, this is just an email decision,” he adds.

 

The NLRB decision doesn’t require an employer to provide email for a group of employees who don’t have it, nor does it require employers to provide access to their email system for union organizers, or third parties, he notes.

 

Jones also suspects the ruling may lead to additional cases that test the presumption of access, in which employers test the rule by saying employees shouldn’t have access to an email system for union organizing.

 

“I think we’re going to see cases where employers do monitor and the question will [then] be whether that was appropriate monitoring or unlawful surveillance,” he says.

 

He also wonders if the ruling will lead to cases involving access to other pieces of employer property, such as phone systems, copiers, or texting systems.