There are probably a few things that employers can feel fairly confident about when it comes to managing the workplace. They can set working hours, hold employees to certain standards, establish pay scales and prevent employees from using the work email system for nonwork purposes.
However, if the National Labor Relations Board has its way, that last belief might go out the window, and sooner than you might expect. The next battlefield between union organizers and employers will take place on email servers, and employers might not be too happy when they learn that their prospects for defeat are pretty high.
Let’s take a step back. The National Labor Relations Act, which governs workplaces union and nonunion alike, guarantees workers the right to take certain actions to try to organize or join a union without fear of management retaliation. The law has been this way in our country for over 75 years.
In the past 20 years, battles have been waged between unions and employers to try to balance this right with the employer’s desire to set limits on when and where this organizing can take place. The NLRB has settled most of these disputes and provided some fairly clear standards. The general rule that came about was that employers could exclude union organizing if the methods used for organizing were ones where the employer maintained exclusively for work purposes.
Think, for example, of the company bulletin board in the break room. If the employer restricted access to posting only work-related and preapproved messages on the bulletin board, then it could justifiably prevent union organizers from posting leaflets promoting an organizing drive or a union rally. But if the company routinely allowed workers to post messages about a daughter’s Girl Scout cookie sale, or even about a March Madness pool, then the NLRB would probably allow union organizing efforts to take place there too. After all, the company demonstrated that the bulletin board wasn’t a sacred “work only” zone, so why should it really complain when an employee wants to post something about a union campaign?
New battle lines needed to be drawn in the past 10 years as the workplace rapidly transformed itself in the digital age, and a case in Oregon has set the standard in this area since 2007. In one of the last acts carried out by a Republican-controlled NLRB (read: business friendly), it issued a decision involving the workplace email system of the Eugene-based Register-Guard newspaper.
In that case, a union employee was punished by her employer after sending several union-related email blasts over the company email system; one attempted to set the record straight regarding a pro-union rally taking place that day in Eugene (ending “yours in solidarity!”), another encouraged employees to wear green to support the union position in contract negotiations, and another solicited attendance at a parade and rally.
The company cited that its clear policy stated that email systems were not to be used to “proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” The NLRB upheld the discipline and the right of employers to restrict email systems for work-related purposes, and an appeals court upheld this decision. Fast-forward to 2014, and the now Democrat-controlled NLRB (read: labor friendly) is itching to revisit this ruling.
On April 30, the NLRB sent shockwaves across the labor field by indicating it would take up a new case involving a similar issue and actively seek input on where and how to redraw the battle lines.
The new case arises from Purple Communications, a technology company based outside of Sacramento, Calif., where a union organizing drive was taking place in 2012-2013. The union organizers objected to the company’s broadly written email policy, which had a blanket prohibition on nonwork-related usage of the company email system, and specifically asked the administrative law judge to overturn the seven-year-old Register-Guard decision.
Although the ALJ dismissed this charge, the NLRB said it wants to revisit the issue on appeal and consider whether to overturn existing law. The union organizers want the NLRB to adopt a rule expressly allowing employees to use their company email system for union organizing activities, subject only to the need for workers to remain productive during work hours.
Before issuing a ruling, the NLRB is now seeking input from employers and labor alike, asking whether it should overturn the law, and if so what standards should be established.
It doesn’t take a crystal ball to predict that the NLRB is very likely to overturn the earlier decision and allow union organizers free reign to use company email systems for their own purposes. That means that this issue will likely head to the federal court system for a final determination.
If a new rule is established, employers will need to drastically rewrite their electronic use policies, even if they don’t have a union presence, and strip away any blanket prohibitions that exist. Labor organizers will likely argue that the existence of such policies would have an improper chilling effect on union campaign efforts.
Obviously, the other result of such a decision from the NLRB and an appeals court would be an uptick in organizing efforts – a development likely to have a widespread impact on the current labor landscape.
Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.