|June 6, 2014|
Previously published on May 27, 2014
In late 2007, the Bush-era National Labor Relations Board issued what has since simply become known as the Register Guard decision. In that decision, a divided Board (along political lines) held that employees have no specific legal right to use their employer’s email system for nonbusiness purposes (for example, to elicit support for union representation). At the time, and since, Register Guard has been viewed as a watershed decision recognizing an employer’s right to control its email system in a manner so as not to allow it to be subverted for union organizing efforts.
However, the dissent in Register Guard argued, among other things, that email use in the workplace is so prevalent in today’s business world that it is little different than face-to-face communication. As such, just as an employer cannot prohibit individual solicitation of union support during a break or on personal time, an employer should not be able to prevent an employee from using its email system to facilitate that process.
With the new, now fully constituted Board, it has been widely expected that many of the Bush-era determinations may be in jeopardy because the Board has increasingly become a highly political creature. Board member terms are five years in length, and are staggered so that each President has the ability to nominate and place Board members during his term. In addition, it has long been recognized that the majority of the Board will be of the same political persuasion as the sitting President - presently the Democratic Party. And now, with the Board constituted solely by Obama Administration appointees, it appears likely that Register Guard is about to fall.
On April 30, 2014, the Board issued a Notice and Invitation to File Briefs in a matter known as Purple Communications, Inc. Typically when the Board solicits such submissions, it signals its intend to overturn a prior decision. In fact, here, the invitation itself specifically asks submissions to address the request to overrule Register Guard and adopt a rule wherein employees who are permitted to use their employer’s email for work purposes have the right to use the email system for organizing efforts, subject only to the need to maintain production and discipline.
According to the union’s counsel involved in Purple Communications, the union will argue that if an employer has an email system, employees have the right to use it for organizing activities so long as it is done on personal, non-work time. And, taking this one step further, the union will also argue that if employees are allowed to use their employer’s email system for personal purposes during work time, then they may also use the system for organizing efforts and union communication during work time; that is, there should be no restrictions on how the email system is used.
Purple Communications has the likelihood to be the most significant decision issued by the Board this year; especially since it is widely expected that it will serve as the vehicle to overturn Register Guard. And, when that happens, employer email systems will likely become the most important tool in the union organizing tool chest.