NLRB 3-2 Finds Employee Right to Use Company E-Mail for NLRA-Protected Activity

By Lawrence E. Dubé

Dec. 11 — In a long-awaited decision, the National Labor Relations Board 3-2 ruled Dec. 11 that employees who have been given access to an employer's e-mail system must presumptively be allowed to use the system during their nonworking time for communications that are protected by the National Labor Relations Act .

In Guard Publishing Co. d/b/a Register-Guard, 351 N.L.R.B. 1110, 183 LRRM 1113 (2007), the board held employees had no statutory right to use such systems, but Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy J. Schiffer said the earlier ruling was “flawed” by analogizing e-mail to an employer's physical equipment without recognizing the likelihood that e-mail has become “the predominant means of employee-to-employee communication.”

Writing that Register-Guard represented a failure of the board to adapt the NLRA to changing patterns of industrial life, the board majority said “[t]he consequences of that error are too serious to permit it to stand,” and they overruled it. Members Philip A. Miscimarra and Harry I. Johnson each wrote vigorous dissents.

The majority said it was attempting to accommodate employees' rights and the legitimate interests of employers, and cautioned that its ruling “applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access.”

The board said an employer will be able to justify a total ban on nonwork use of e-mail only if it shows that “special circumstances” make a ban necessary to maintain production or discipline.

If an employer cannot justify a total ban, the board said, it will be able to apply “uniform and consistently enforced” controls over an e-mail system, but only to the extent that they are required to maintain production and discipline.

Hot Issue, Strong Reactions

The e-mail issue has been a controversial one, and it will likely drive continued argument in and out of court by advocates on both sides of the question.

David Rosenfeld of Weinberg Roger & Rosenfeld in Alameda, Calif., represented the Communications Workers of America in the NLRB proceeding and he told Bloomberg BNA Dec. 11 the ruling is a “great victory.”

Rosenfeld said the ruling will allow employees to communicate about workplace issues during their nonwork time, noting the board approved a rebuttable presumption that employees who have been given work-related access to e-mail systems can use the resources for activityprotected by Section 7 of the NLRA.

The union lawyer said the ruling will also allow employees to use workplace e-mail during their working time as long as they are not stopping work.

Robert J. Kane of Stewart Kane in Newport Beach, Calif., represented Purple before the NLRB. He told Bloomberg BNA the employer is disappointed, but not surprised, by the board's decision. The company is reviewing the ruling and examining its options, the lawyer said.

Marshall B. Babson, counsel at Seyfarth Shaw LLP, who represents management, told Bloomberg BNA that employers may consider the decision an even bigger development than the NLRB's revision of its representation case regulations (see story in this issue).

Babson called the ruling inconsistent with 50 years of precedent under the NLRA and said it has been well established that a means of communication belonging to an employer did not have to be shared with employees engaged in statutorily protected activity. Babson said the U.S. Court of Appeals for the District of Columbia Circuit has “beaten that drum” repeatedly.

The lawyer also said the board's decision raises a “very serious issue” about a “compelled speech” violation of the First Amendment. The government should not be able to tell an employer that it has to allow use of its own systems to facilitate expression of a point of view that it does not share, he said.

Babson said he expects a reaction from members of Congress who have already expressed dissatisfaction or discomfort with the NLRB. “The agency is really in a perilous position,” he warned, saying the board needs to show a commitment to observing long-standing legal principles.

Dispute Over Computer Use Policy

The case before the board arose on an unfair labor practice charge filed in December 2012 by the Communications Workers of America, which lost a representation election at two facilities of Purple Communications, operator of communications centers for deaf and hearing-impaired individuals. The union alleged in postelection objections and its unfair labor practice charge that the company maintained illegal employment policies, including a ban on “disruptive” conduct and a policy on computer use:

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

2. Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.

5. Sending uninvited email of a personal nature.

 

An NLRB administrative law judge conducted a hearing on the union's objections and its unfair labor practice allegations. The ALJ directed a new election and found the disruptive conduct policy violated Section 8(a)(1) of the NLRA, but he dismissed the union's challenge to the computer use policy. The board affirmed the ALJ's rulings on the disruptive conduct policy and adopted his recommendations to conduct new representative elections, but it deferred action on the e-mail issue.

Business and labor groups were among those that responded to an NLRB invitation and filed amicus briefs on the possible overruling of Register-Guard.

E-Mail a ‘Critical Means' of Communication

Pearce, Hirozawa and Schiffer wrote there is no doubt about the need of employees to communicate among themselves “as a foundation” for their exercise of NLRA-guaranteed rights, including the right to engage in union and protected concerted activities for their mutual aid or protection.

In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 16 LRRM 620 (1945), the U.S. Supreme Court held that the right of employees to organize had to be balanced against the right of an employer to maintain proper discipline. The court upheld the board's adoption of a presumption that an employer could not prohibit employee solicitation at a company plant during nonworking time unless there were special circumstances to support such a restriction.

“There is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings,” the board said, citing a 2008 Pew Research Center survey that reported 96 percent of employees used internet, e-mailand mobile phone resources to remain connected to their jobs.

Employers commonly permit employees to make some personal use of e-mail systems, the board said, and e-mail systems “are different in material respects from the types of workplace equipment the Board has considered in the past.”

Echoing board member dissents in Register-Guard, Pearce, Hirozawa and Schiffer observed that “[e]mployee email use will rarely interfere with others’ use of the email system or add significant incremental usage costs, particularly in light of the enormous increases in transmission speed and server capacity.”

The board said e-mail systems resemble telephones more closely than other types of workplace equipment.

Rule Retroactive

Pearce, Hirozawa and Schiffer said an employer may rebut the presumption by showing that special circumstances justify a restriction on e-mail use, but they said they “anticipate it will be the rare case where special circumstances justify a total ban on nonwork email use byemployees.”

The board said nothing in its ruling would bar the practice of some employers to monitor employees' e-mail use for legitimate reasons and to warn employees that they should have no expectation of privacy in the employer's e-mail system. However, the board members noted, an employer's use of such measures would be lawful only when “the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”

The board said it would remand the Purple Communications case to the ALJ and allow the parties to introduce evidence on the lawfulness of the company's policy. However, the board said it will apply its decision retroactively to other cases that may be pending before the agency at any stage.

Miscimarra Cites Alternatives, Expects Confusion

Dissenting, Miscimarra said the majority apparently presumes that limiting use of an employer e-mail system is an unreasonable impediment to the exercise of employee rights under the NLRA, but he argued “there is no rational basis for such a presumption.”

“National uprisings have resulted from the use of social media sites like Facebook and Twitter, for example, even when governments have used force to prevent such activities,” Miscimarra wrote, arguing that employees have access to social media sites and electronic communication resources that “are more effective, more user-friendly, and more conducive to facilitating concerted activities than employer email systems.”

Miscimarra also argued “[t]he majority's new right—combined with the nature of email and computer usage in most workplaces—will make it all but impossible to determine whether or what communications violate lawful restrictions against solicitation during working time. The resulting confusion will be out of all proportion to whatever benefit the new standard might yield for NLRA-protected concerted activities.”

Johnson wrote a 32-page dissent that challenged the majority's reasoning on a number of fronts. The board member agreed that most employees who use workplace e-mail systems use them for nonbusiness purposes, including “occasional discussions about terms and conditions of employment.”

He wrote that Republic Aviation and other precedents have generally followed a principle that “working time is for work,” but the transmission of a single e-mail could start a cascade of other messages. “It is,” Johnson warned, “extremely naive to believe that substantial amounts of work time, in the aggregate, will not now be spent on these communications—on a basis that is essentially unmonitorable by the employer.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9rpn6t.