NLRB Evaluating Employer Prohibitions Against Use of Email for Nonbusiness Purposes

by Chambliss, Bahner & Stophel, P.C.

On May 1, 2014, the National Labor Relations Board (the "Board") issued an announcement inviting interested parties to submit briefs on the question of whether employees who are permitted to use their employer's email systems for work purposes also have the right to use company email for activities protected by Section 7 of the National Labor Relations Act ("NLRA").  Such activities would include union organizing as well as communications between employees regarding terms and conditions of employment.

The briefs were requested by the Board in the currently pending case of Purple Communications, Inc.  In that case, an administrative law judge dismissed an allegation by the Communication Workers of America ("CWA") that the employer violated the NLRA by prohibiting the use of its electronic equipment and email systems for activity which was not business related.  The CWA and the Board's General Counsel filed exceptions to the ALJ's decision and asked the Board to overrule the well-known Register Guard decision from 2007.  The Board in that case had upheld an employer's right to prohibit the use of company email for non-job-related solicitations and stated that "employees have no statutory right to use the Employer's e-mail system for Section 7 purposes."

In its exceptions to the ALJ's ruling, the Board's General Counsel emphasized the importance of email as a means of employee communication.  The General Counsel stated:

Employees have a Section 7 right to communicate at work, and, in technological workplaces, email is the present day water cooler.  In the last 10-plus years, the emergence and widespread use of email has transformed the manner in which many employees interact in the workplace.  In many workplaces, technology has replaced face-to-face communication in a break room, cafeteria, or other traditional gathering places as the preferred method of communication . . . Because employees have a Section 7 right to communicate at work, employees who have access to and utilize electronic communication in their workplaces have a Section 7 right to communicate through email.

Not surprisingly, the employer in Purple Communications disagreed and pointed out that employees may communicate with one another during breaks and meal periods without using computer systems which the employer has provided for business purposes.  In other words, the "water cooler" is alive and well in today's workplace.  In its brief in response to the General Counsel, the employer stated:

[T]here is no evidence to support General Counsel's statement that the employer's email system "is the only water cooler" where employees may discuss their terms and conditions of employment and the relative pros and cons of being represented by a union . . . In fact, the whole "email is the new water cooler" argument is ridiculous. The water cooler remains what it had been, a place where discussion of various and sundry topics, including communications protected by Section 7, takes place among those in the area at the time.  There is no evidence here to support General Counsel's assertion that email has replaced face to face communication in break rooms and other traditional gathering places.  Employees still use those facilities when they are available, as they are here, and still talk to each other there as they have in the past.

The employer in Purple Communications also noted that email is a completely different means of communication.  In contrast to one-on-one communications at the water cooler, email has the potential of reaching hundreds or thousands of employees at multiple locations and bargaining units in a matter of seconds.  Moreover, email becomes a permanent record which may be retrieved indefinitely.  Voicing what is no doubt the concern of many companies, the employer in Purple Communications has argued that a reversal of Register Guard will allow unions to commandeer employer email systems as a new, ready-made tool for organizational campaigns.

Interested parties have until June 16, 2014, to submit briefs to the Board.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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