In a divided opinion yesterday, the National Labor Relations Board ruled that employees can use their company’s email system for the purpose of Section 7 union-organizing activities. The case was brought to the NLRB’s attention by the AFL/CIO, which brought a lawsuit against California-based Purple Communications over its policy banning employees from using company email for activities related to union organizing.
In ruling 3-2 in favor of the plaintiffs, the NLRB overturned its 2007 Register Guard decision, in which it gave companies the right to restrict employees’ use of company email for organizing purposes without eliminating their right to use work email for other personal purposes. The latest ruling is “responsive to the enormous technological changes that are taking place in our society,” the board wrote. The NLRB said its ruling is “carefully limited” and applies only to employees who have already been granted access to company systems for their own work. Employers are not required to let employees use work email for Section 7 activities, the Board wrote — indeed, it can ban work email from being used for these purposes during work- and non-work hours so long as it’s part of a total ban on non-work use of its email system.
However, Philip Miscimarra, one of the two board members who voted against the majority, said that technological advances mean that employees have plenty of electronic options other than company email for the purposes of union-related communication. “National uprisings have resulted from the use of social media sites like Facebook and Twitter,” he said.
Jeffery Meyer, a labor and employment attorney with Kaufman Dolowich & Voluck, says the ruling “opens the floodgates for a full attack on employer property rights.”
“What this decision does is to provide unions and employees with a legal foundation to argue that Section 7 rights now trump an employer’s property right in almost any circumstance,” Meyer writes in a brief on the ruling.
Employers should review and, if necessary, revise their policies on electronic devices and instruments to take advantage of the “caveats delineated in the Board’s decision,” he writes. Although it’s a drastic move, “strict yet clear prohibitions and/or controls on personal use of company email systems could prove to be the difference in an organizing campaign where the union might not otherwise be able to contact the entire workforce.”
A company’s failure to revise its policies “could provide unions with a very useful tool to organize their employees,” writes Meyer. “Purple Communications serves as concrete evidence that a union will not think twice to use an unlawful handbook policy to its advantage in order to seek a new election should the employer win the first go-round.”Twitter It!