NLRB General Counsel Argues Employees Should Have the Right to Use Company E-Mail for Union Organizing

On June 16, 2014, National Labor Relations Board General Counsel filed a brief arguing that the Board should find that employees have a statutory right to use their employer’s e-mail system for union organizing, overturning the Board’s 2007 decision in Register-Guard.

General Counsel Richard Griffin argues that as a result of technological developments, in many workplaces, employees primarily communicate with each other electronically.

As employees increasingly use electronic communications as part of their jobs, email has become the virtual “natural gathering area” for employee discourse . . . Because employee discourse is crucial to Section 7, and because of the prevalence of electronic communications in many modern workplaces, employees should have a Section 7 right to communicate with each other through email in their workplace.

While General Counsel Griffin acknowledges that employers must retain the right to limit the use of employer e-mail to non-working time. However, the General Counsel takes the position that to restrict the use of e-mail an employer should be required to make a special showing to establish that its interests related to production or discipline warrant the restriction. This would be no simple task as it will “require more than a general assertion of management interests at stake, but, rather, a particularized showing that the employer cannot achieve its actual, identified interest without restricting employees’ Section 7 right to communicate via e-mail.”

The General Counsel’s argument fails to address the significant workplace problems that overturning Register-Guard and creating a Section 7 right to use employer e-mail systems would create, especially in the face of the General Counsel’s and Board’s aggressive efforts to strike down employer policies such as those regarding confidentiality, harassment, and discrimination.

Perhaps the most glaring omission from the General Counsel’s brief is any recognition of how other Board precedent would likely be interpreted to prohibit employers from attempting to police abuse of the e-mail on the ground that the mere effort to police abuse would constitute surveillance of union activity. In Flamingo Las Vegas Operating Company LLC, 359 NLRB 98 (2013), the Board held that an “employer creates an unlawful impression [when], under the circumstances an employee could reasonably conclude that his union activities are being monitored.”

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