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Legal Alert: NLRB Will Consider Whether Employees' Use of Employer's E-Mail is Protected Concerted Activity Under NLRA

Date   Jan 19, 2007
The National Labor Relations Board (NLRB or Board) has announced that it will hold oral argument on March 27, 2007, on the issue of whether employees' use of their employer's e-mail system is protected concerted activity under the National Labor Relations Act (NLRA).

The National Labor Relations Board (NLRB or Board) has announced that it will hold oral argument on March 27, 2007, on the issue of whether employees' use of their employer's e-mail system is protected concerted activity under the National Labor Relations Act (NLRA). See Guard Publishing Co., d/b/a The Register-Guard, NLRB, No. 36-CA-8743-1, notice 1/10/07. In this case, the union, which represents employees working for a daily newspaper in Eugene, Oregon, filed unfair labor practice charges challenging the newspaper's maintenance of a policy prohibiting the use of its e-mail system "to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."

An administrative law judge (ALJ) for the NLRB held that the policy was not a facially overbroad no-solicitation/no-distribution rule but rather a valid limit on the use of the employer's communications equipment. In reaching this decision, the ALJ noted, "the Board has consistently found that employers may non-discriminatorily limit the use of their communications equipment without infringing on employees’ rights to solicit for Section 7 purposes." However, the ALJ also found that the employer violated the NLRA when it disciplined an employee for using the company's e-mail system for union-related purposes while generally permitting employees to use e-mail for a wide variety of non-business purposes. "Having permitted a plethora of non-business uses of e-mail, Respondent cannot validly prohibit e-mail dealing with Section 7 subjects."

The NLRB has agreed to review the ALJ's decision and has invited the parties and interested amici to file briefs on seven specified issues raised in the case. Specifically, the NLRB is especially interested in answers to the questions set forth below.
  1. Do employees have a right to use their employer's e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
  2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees' use of their employer's e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
  3. If employees have a right to use their employer's e-mail system, may an employer nevertheless prohibit e-mail access to its employees by non-employees? If employees have a right to use their employer's e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
  4. In answering the foregoing questions, of what relevance is the location of the employee's workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
  5. Is employees' use of their employer's e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer's e-mail system, to what extent is that right waivable by their bargaining representative?
  6. How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
  7. Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?

Briefs must be filed with the Board's Executive Secretary by close of business in Washington, D.C. on or before February 9, 2007. Briefs are limited to 50 pages and will be posted on the NLRB's web site, www.nlrb.gov, as they are filed. Those submitting amicus briefs may also request to participate in oral argument, although time limitations may preclude granting all requests. More information regarding submitting briefs in this case is available on the Board's web site, www.nlrb.gov.

Employers' Bottom Line:

A determination by the NLRB that use of an employer's electronic communications system is protected concerted activity under the NLRA may require many employers to revise their electronic communications policies and train supervisors regarding the application of these policies. Such a determination may also require reconsideration of the company's strategic plan for preventive/preemptive measures for union avoidance. We will keep you advised of the outcome of this case.

If you have any questions regarding this decision or other labor or employment related issues, please contact the Ford & Harrison attorney with whom you usually work.