Late last year, the Board invited interested groups to file briefs in Roundy’s, Inc., 356 NLRB No. 27 (2010), a case involving what legal standard should be applied to determine whether an employer has violated the NLRA when it prevents non-employee union representatives to access to its property. In Sanudsky Mall Co., 329 NLRB 618 (1999), the Board determined that if any outside groups were allowed to use employer property, regardless of the type of group, then union organizers could not be barred. There actually has been no significant change in the law or real question about the law in this type of case since the Board set forth the standard. So, while the Obama-board has had a pattern of requesting briefs from interested parties before issuing a precedent changing decision, it was curious that they did so in this rather run-of-the mill case.

It, however, soon became clear what the Board was doing. In 2007, the Bush-era NLRB issued its highly controversial decision in Register Guard, 351 NLRB 1110 (2007) - - finding that an employer could restrict employee use of its computer systems for union solicitation purposes, even though it allowed employees to use it for other personal, non-business purposes. (Read our client alert on Register Guard). Since for various reasons the Board could not overrule Register Guard directly (including that Member Becker appeared in the case, and therefore cannot rule on it directly again), the Board seems set to use a rather routine property case to overturn the standard to be used for e-mail situations.

In fact, the briefs filed with the Board leave no question that all sides believe that is what he Board is looking to do. NLRB Acting General Counsel Lafe Solomon submitted a brief explicitly asking the Board to use the case to apply Sandusky Mall to all forms of access cases and to hold that Register Guard “adopted an inappropriate analysis and should be overruled.” Meanwhile, management-side representatives have filed briefs supporting the broader Register Guard standard (and looking to have it expanded to traditional property cases as well).

Given that almost every employer’s email system is used for some form of personnel business, overturning Register Guard will give union supporters broader access to companies’ e-mail and other electronic systems.

Typically, the Board has issued decisions on cases in which it has requested briefs within two months after the briefs are filed. So, stay tuned.