NLRB Issues Invitation for Comment on Unions’ Use of Employer Email Systems
May union organizers lawfully use their employer’s email system for union-related communications? This question has been asked and answered, asked again and answered differently, and is now being asked a third time. The National Labor Relations Board (NLRB) has issued an invitation for comment on rescinding or revising the current rule of law.
An employee use of a company-owned email system was first addressed in Register Guard, 351 NLRB 1110 (2007), which held that while union-related communications cannot be banned because they are union-related, facially neutral policies regarding the permissible uses of employers’ email systems are not rendered unlawful simply because they have the incidental effect of limiting the use of those systems for union–related communications.
In Purple Communications, Inc., 361 NLRB 1050 (2014), the NLRB overruled Register Guard and held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act.
Given the current Republican majority makeup of the NLRB, it seems likely that the pendulum will swing back again and that the rule instituted in Register Guard, or one similar to it, will be issued. Interested parties should consider submitting briefs supporting their position accordingly to the briefing schedule included in the notice. The invitation issued by the NLRB can be found here.
Beyond the use of email, as addressed in Register Guard and Purple Communications, Inc., the NLRB is also inviting comment on the standard it should apply to evaluate policies governing the use of employer-owned computer resources other than email.
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