by Chaz Bolte
The NLRB has issued a “Notice and Invitation to File Briefs” [PDF] in the Purple Communications, Inc. case which could overturn the precedent concerning organizing activities on company email systems set by the board’s ruling in the Register-Guard case during the Bush Administration.
Using the Register-Guard decision as precedent, companies can currently enforce policies which prohibit company email from being used for anything but business purposes. But the current NLRB appears interested in reversing that decision partially due to the increased importance of email in organizing since the Bush era. Another goal is to align the ruling with other recent rulings that helped streamline the union election process.
The NLRB’s notice asks five questions of the involved parties to be answered in briefs by June 16th:
- 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?
- 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?
- 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?
- 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?
- 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?
According to the law firm of Ogletree-Deakins, whose blog has a decidedly anti-worker bent, the changes could, among other things, “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,” and, “allow employees or unions to use company email systems to declare a work stoppage.”