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The National Labor Relations Board should scrap its Obama-era rule that allows workers to use their employers’ email systems to discuss unionization, the NLRB general counsel’s office says.
That 2014 decision giving workers the right to use company email for organizing purposes lowers workplace productivity, compromises digital security, and ignores all the other ways workers can communicate, General Counsel Peter Robb’s office told the NLRB in a Sept. 14 brief. Employers should be able to restrict email use in a nondiscriminatory way, the brief said. Chad Wallace, an attorney in Robb’s office, wrote the brief.
Wallace’s brief also raised First Amendment concerns, saying the board as a government entity can’t force employers to pay for speech on their email systems that they might oppose. To support this argument, Wallace pointed to the U.S. Supreme Court’s recent landmark ruling in Janus v. AFSCME, which banned public sector unions from collecting fees from nonmembers on free speech grounds.
The call for the board to strike down its ruling in the Purple Communications case puts the general counsel’s office in line with the U.S. Chamber of Commerce and other business groups that have said the four-year-old decision wrongly took away employer control over their own email systems. The general counsel office’s free speech argument against the Purple Communications ruling also highlights a more expansive use of the First Amendment to protect employers’ workplace rules and policies.
The NLRB is considering revising its email rule in a separate case called Caesars Entertainment Corp., which involves workplace rules at a Caesars Resorts casino in Las Vegas. The board has invited public input on the issue, extending the deadline to submit comments until early October.
In its brief to the board, the general counsel’s office said the board should return to its pre-2014 rule that workers have no statutory rights to use company email for unionization purposes, provided the employer’s restrictions on email use are nondiscriminatory.
But the general counsel’s office said there should be limited, case-by-case exceptions when workers can’t communicate by other means. For example, some workplaces don’t have cellphone reception, the office said.
A group of Democratic senators led by Elizabeth Warren of Massachusetts told NLRB Chairman John Ring that Member William Emanuel, a fellow Trump administration appointee to the board, should recuse himself from the Caesars Entertainment Corp. case. Emanuel had previously practiced at the law firm Littler Mendelson, which represents Purple Communications in its legal challenge to the NLRB’s email ruling pending at the U.S. Court of Appeals for the Ninth Circuit.
“Thus, member Emanuel’s participation, in any form, in Caesars Entertainment Corp. would present a clear conflict of interest and put him in the position of using the power of his office to influence the interests of his former employer—exactly the scenario that federal ethics regulations are designed to avoid,” the senators wrote in their Sept. 17 letter to Ring.
If Emanuel dropped out of the case, the board may not have the three votes needed to overturn Purple Communications.
David Rosenfeld, an attorney representing unions involved in both Caesars Entertainment Corp. and Purple Communications, and an attorney for Caesars weren’t immediately available for comment.
—Josh Eidelson contributed to this story
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