Close observers of the National Labor Relations Board (NLRB) in recent years had long expected the Board to one day revisit—and, possibly, overrule—Register-Guard, 351 NLRB 1110 (2007), the landmark NLRB opinion holding that employees do not have a statutory right to use their union or nonunion employers’ email systems for union organizing, or other purposes, under Section 7 of the National Labor Relations Act (NLRA). It appears that that time is finally upon us.

Today, the Board issued a “Notice and Invitation to File Briefs” in Purple Communications, Inc. 21-CA-095151 (Bogas, Oct. 24, 2013), a case in which an Administrative Law Judge—relying on RegisterGuard as precedent—permitted an employer to enforce an email policy that prohibited employee use of company equipment (including computers, Internet services, and email applications) for anything other than business purposes.

The NLRB General Counsel and the union have now asked the Board to overrule its Register-Guard decision because of the increased importance of email as a method of communication and to adopt a rule that employees who are permitted to use their employers’ email applications for work purposes have the right to use it for activity under Section 7 of the NLRA (subject only to the need to maintain production and discipline).

The Board’s Notice poses five questions to be addressed by the parties (and interested amici), in briefs due to be filed with the Board by June 16, 2014:

  1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

If, as we expect, the Board reverses Register Guard, the significance of the Board’s decision will dramatically impact all employers due to the ubiquitous nature of emails and other electronic communication systems in the workplace. A reversal could

  • jeopardize employers’ rights to monitor their own email systems (to prohibit sexual harassment, ensure productivity, investigate code of conduct violations and police trade secret theft, for example);
  • subject employers’ electronic communication systems to potential disruptive activities such as email blitzes intended to drown out work-related or other emergent company email messages;
  • allow employees or unions to use company email systems to declare a work stoppage or other coordinated, subversive tactics; and
  • pave the way for the Board in a future decision to allow e-card signing as a sufficient predicate for filing a petition for election.

These concerns will be all the more dire for employers if the NLRB passes its pending “quickie” election / “ambush” election rules, or if the U.S. Department of Labor (DOL) implements its persuader regulations.  Those troubling initiatives already would deny employers meaningful pre-election time to tell their side of the story, and would deny competent legal representation to employers faced with a union organizing campaign.  Allowing unfettered access to a company’s electronic communications under such circumstances would create a daunting challenge for employers, to say the least.

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