WHISKEY BENT AND HELLBOUND: THE NLRB MAY TARGET EMPLOYER E-MAIL SYSTEMS NEXT

Employers certainly have had a difficult road to travel over the last 18 months or so as the National Labor Relations Board (NLRB) under President Barack Obama has demonstrated an activist role in restructuring the labor relations landscape.

In fact, it has become difficult to keep up with the NLRB’s litany of pronouncements, with the two most recent being its attack on at-will employment and attempting to preserve confidentiality during internal investigations, discussed previously in this forum here and here, respectively.  These go along with the Board’s efforts to modify the election process (quickie elections), to create new posting requirements, and to open the door to micro-units (Specialty Healthcare), just to name a few. 

Unfortunately, another assault on employer rights appears on the horizon – their property interests in their computer systems, preserved by the (Bush II) Board’s decision in Register Guard, 350 NLRB No. 70 (2007).  If this is the next employer right to fall, employees will have much greater use of employer computer and email systems to engage in union organizing activity.

In Register Guard, the Board concluded that employers could lawfully prohibit employees from using the employer’s email system for non-business activity, including union activity.  The Board concluded that an employer’s computer and software are no different than other property of the employer:  the telephone, bulletin boards, etc.  The advent of those communication methods did not give employees carte blanche ability to use those systems.  Rather, as the law has developed with regard to those components of communication, the employer’s property interests have generally prevailed – subject to not being able to permit use of those systems on a discriminatory basis.

In her dissent in Register Guard, then-Member Liebman lamented the decision as “fail[ing] to recognize that email has revolutionized communication both within and outside the workplace….”   She went on to add that, “[n]ational labor relations policy must be responsive to the technological changes that are taking place in our society.”  Indeed, then-Member Liebman stated that “[t]oday’s decision confirms that the NLRB has become the ‘Rip Van Winkle of administrative agencies.’”  Essentially, her position was that the Board was denying employees access to cyberspace.  Of course, that wasn’t true – it was just access to the employer’s property which was at-issue – but to her, that was just an insignificant detail.

With the impending election and the close of the government’s fiscal year, there is speculation that the Obama Board will seize upon a pending union access case, Roundy’s, Inc., to grant employees the right to use employer’s computer systems – including work e-mail – to engage in union activity.  Keep in mind that the NLRB’s proposed election rules, which are currently pending in Court, include modifying the disclosure of voter lists to include, among other things, e-mail addresses (coyly, it does not clarify personal or work).  It would not at all be surprising for the Obama Board to make the dissent in Register Guard the rule in Roundy’s, Inc.

Visit the Employment Essentials blog often and follow us on Twitter to find out if, in fact, the Board makes such a ruling.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
 
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