As a business person, you’re probably familiar with the National Labor Relations Board (NLRB). That’s the federal governmental body that regulates companies that are unionized and only those that are unionized, right?
Wrong. The NLRB regulates all matters pertaining to unfair labor practices whether taking place in union or non-union companies. This includes matters pertaining to union organizing at companies just like yours. Even further, a recent decision of the NLRB will very likely affect how you administer the E-mail system you provide to your employees, whether your company is a union shop or not.
Like most companies, Purple Communications Inc. provided its employees with an E-mail system created and maintained expressly for business purposes with each employee assigned his or her own E-mail account. After it lost a representation election, the Communications Workers of America (CWA) filed objections to Purple Communications’ conduct in combating the union organizing drive, including a claim that the company interfered with the employees’ exercise of the right to engage in concerted activities when it prohibited use of the E-mail system for anything other than business purposes, even during non-working time.
“Concerted activities” are defined as conduct involving two or more employees acting together to improve their terms and conditions of employment, including furthering the process of union organizing. After an initial decision for the employer by an Administrative Law Judge based on existing precedent, the NLRB in December 2014 overruled the initial decision and the precedent on which it was based.
The Board reaffirmed that the right of employees to engage in concerted activities in the workplace is central to their rights under the National Labor Relations Act (NLRA). Typically this type of communication has been limited expressly to the right of oral communication between employees. The NLRB held that in today’s world, however, the ever-increasing percentage of the typical employee’s day spent using E-mail makes E-mail a “natural gathering place” which is pervasively used for employee to employee communications.
Based on this new understanding of the role of E-mail, the NLRB devised an updated analytical framework that it plans to use in ruling on future cases concerning employee use of employer provided E-mail systems with respect to work-related communications, as follows:
1) Employer restrictions on employees’ use of E-mail during nonworking time will be presumptively invalid.
2) An employer may rebut that presumption by demonstrating the existence of special circumstances necessary to maintain production or discipline but restrictions based on such circumstances may be no more restrictive than necessary to protect the employer’s interest. The Board has provided no guidance as to what might constitute valid special circumstances.
Thus the National Labor Relations Board has now essentially ruled that workers must be permitted to use their employers’ E-mail systems during non-working time for union organizing activity and most other communications about workplace conditions. It is important for non-union employers to keep in mind that the decision is not limited to union activity but also encompasses concerted activity regarding complaints about supervisors and co-workers, sexual harassment matters, safety concerns, wage and hour disputes, and more.
There is a lot for employers to digest under this very recent decision, and its full implications cannot wholly be determined at this time. Now is a good time to begin taking a fresh look at your policies regarding permissible and impermissible uses of your company E-mail system. Many employers will need to make changes as more becomes known.
We will be monitoring this situation and all related developments closely. As always, if you need us, we’re just an E-mail away.