NLRB Considers Forcing Employers to Allow Union E-Mail Organizing

An employer presumably sets the rules as to who uses its e-mail accounts and for what purposes. But that presumption might not hold if the users are union organizers. On April 30, the National Labor Relations Board (NLRB) posted a notice soliciting comments on an October ruling by an Administrative Law Judge, Purple Communications Inc., that an employer has the discretion to deny the use of its e-mail system for organizing. If the NLRB reverses the decision, which is likely given its current 3-2 pro-union majority, it would be handing unions a potent organizing tool, and more broadly, restricting property rights. Ironically, a victory by the union in question, the Communications Workers of America, would overturn a 2007 board decision protecting an employer’s right to bar usage of company e-mail for organizing. The deadline for submission of briefs is June 16.

Defining the legal limits of union organizing in the context of employer property rights long has been a matter of interpretation. The National Labor Relations Act (NLRA) guarantees employees at a given worksite the right to organize or join a union without having to fear employer retribution. At the same time, that right may collide with the employer’s right to set boundaries for usage of its property for union solicitations, whether performed by employees or outside parties. Such conflicts may occur whether the company property is the office, factory floor, phone, e-mail or website. From time to time, the NLRB has had to resolve such disputes.

When it comes to use of real property, the National Labor Relations Board established the current doctrine 15 years ago in Sandusky Mall Co. [329 NLRB 618 (1999)]. In that Ohio case, the board concluded that since shopping mall management allowed general usage by outside groups, it could not make an exception in the case of unions. The Board affirmed this position a few years ago by letting stand an Administrative Law Judge ruling that Roundy’s, a Milwaukee-area supermarket chain, could not prevent union organizers from passing out handbills in common areas adjoining nearly two dozen stores where the company held a nonexclusive easement; Roundy’s, in other words, only could order organizers off store property where it held an exclusive easement [Roundy's Inc. 356 NLRB No. 27 (2010)]. The Milwaukee Building and Construction Trades Council, an AFL-CIO affiliate, had brought forth the case, complaining that Roundy’s management had used nonunion building contractors who paid their workers below-prevailing wages for the metro area. The union handbills urged a boycott of Roundy’s supermarkets. After the NLRB affirmation, Roundy’s petitioned the U.S. Court of Appeals, Seventh Circuit, for a review. The court denied this petition in March 2012.

This doctrine, however, doesn’t necessarily apply to e-mail access – and rightly so. Virtual property such as e-mail accounts are meant to facilitate communication among employees during company hours. Because outsider use is inherently more limited, employers would seem to have a stronger case for exclusion. Indeed, the National Labor Relations Board concluded as much over six years ago in Register Guard [351 NLRB 1110 (2007)]. Union Corruption Update had reported on this case at the time. By a 3-2 margin along party lines (with the three Republicans forming the majority), the NLRB concluded that a Eugene-Ore.-based newspaper, The Register Guard, owned by Guard Publishing Co., was within its rights in stipulating that its e-mail and other employee communications systems “are not to be used to proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” Management, concluded the board, had the authority to apply that rule to an affiliate of the Communications Workers of America to which a number of newsroom employees belonged. The majority opinion held: “(E)mployees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” The ruling, however, wasn’t a complete victory for the employer. It held that Guard Publishing’s disciplinary action against an employee-CWA representative was unlawful to the extent that it punished that person’s purely informative (as opposed to advocacy) use of company e-mail. The board remanded the case to a District of Columbia circuit court, which upheld the ruling [Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009)].

Its partial victory notwithstanding, organized labor has been smarting over Register Guard these last several years. All the more frustrating, from their standpoint, is the fact that the ruling was handed down on the last day in office of then-NLRB Chairman Robert Battista, a Republican. With a 3-2 Democratic majority since last summer (after more than a half-decade of operating short-handed), plus the guidance of pro-union current General Counsel Richard Griffin, a reversal is now within their grasp. The challenge has been finding an appropriate case. Union lawyers and their allies believe they have found one in Purple Communications.

Established in 1982, Purple Communications Inc., based in Rocklin, Calif. (near Sacramento), has become a leader in the field of communications technologies for the deaf and near-deaf, especially through mergers and acquisitions of existing companies such as Verizon IP-Relay and GoAmerica (formerly Wyndtell). As of late, the company has faced a different kind of challenge: a complaint filed against it by the Communications Workers of America (CWA). Last October 24, Administrative Law Judge Paul Bogas ruled in favor of Purple Communications, effectively dismissing an allegation by NLRB General Counsel Griffin that the company had violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by establishing and enforcing a policy that banned non-business use of its electronic equipment and systems. Several workers at Purple had complained about the company policy banning the use of e-mail to discuss pay, benefits and working conditions. The ban, argued the employees, violates Section 7 of the NLRA, which grants employees in private-sector workplaces the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In effect, the board appears intent on overturning Register Guard by way of a seemingly routine property rights case. This wouldn’t be the first time. Over three years ago, then-NLRB Acting General Counsel Lafe Solomon submitted a brief to the Board recommending that it apply its Sandusky Mall ruling to the Roundy’s case and all forms of union access cases. Solomon wanted the Board to hold that Register Guard “adopted an inappropriate analysis and should be overruled.” Electronic forums and communications systems, he argued, are no different from face-to-face conversations, as far as federal labor law is concerned.

The NLRB position in Purple Communications, in a sense, is an extension of its reissuance in early February of the “quickie election” rule, which would drastically shorten the time frame for opponents of a union representation campaign to state their views. Moreover, it serves as a complement to unions that target employers through corporate campaigns and lawsuits. A CWA victory would be a virtual godsend to unions generally. As Forbes columnist Joel Barras wrote on May 2 in response to the board’s announcement to review the case: “While the agency’s (NLRB’s) motivation is clearly intended to encourage and aid union organizing activity, such a ruling will also give plaintiffs’ lawyers perhaps the single best tool to target employees in their recruitment efforts for class action lawsuits or assembly-line, single-plaintiff actions.” It also would represent a major setback for property rights. Like it or not, an employer reserves the right to determine how his property, including computer hardware and software, may be used. Thus, a CWA victory could restrict property rights in venues outside employer-employee relations. Liberty would be biggest loser.

Related:

NLRB Revives ‘Ambush Election’ Rule to Thwart Opposition to Union Campaigns

Will NLRB Create Stealth Pro-Union Legislation?

Board Defends Employer’s Right to Restrict Employee E-Mail