NLRB Invites Briefing On Requiring Employers to Open Their E-Mail Systems to Union Organizing

Stephen R. McCutcheon, Jr., Attorney at Law

NLRB General Counsel Griffin indicated in a memo approximately two months ago that he intended to attack the President Bush-era decision in Register Guard, 351 NLRB 1110 (2007) which held that employees do not have a statutory right under the NLRA to use their employer’s e-mail system for protected concerted activity, such as union organizing. General Counsel Griffin and the NLRB have wasted no time in moving forward.

The Board issued a Notice and Invitation to File Briefs today in Purple Communications, Inc. and Communication Workers of America, AFL-CIO requesting briefing on five questions:

  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?

Interested people and entities have until June 16, 2014 to file briefs with the NLRB. Given the aggressive and expansive assertion of power by this Board and its General Counsel, employers – union and non-union alike – can expect to be in the crosshairs over their policies limiting the use of company communications systems to business-related purposes only.

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