Employers often forbid employees from using company e-mail and other electronic communications systems for all non-business purposes. Under current National Labor Relations Board decisions, such a blanket prohibition, which includes a prohibition on using these systems for Section 7 (i.e., union and other protected concerted activity) purposes is lawful as “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” Register Guard351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB571 F.3d 53 (D.C. Cir. 2009). However, the NLRB’s General Counsel and the Communications Workers of America, AFL-CIO (“CWA”) argue such limitations should be held unlawful. They are asking the NLRB to overturn Register Guard and grant employees the right to use company e-mail to engage in union and other protected concerted activities, such as trying to drum up support for a union or encourage employees to protest certain working conditions.

Purple Communications, Inc., JD-75-13 (Bogas, ALJ, Oct. 24, 2013), is the case providing them with the vehicle for this move. There, the CWA alleged the employer’s rule prohibiting employees from using its equipment for non-business purposes unlawfully interfered with employees’ rights. Without referring expressly to Register Guard, the Administrative Law Judge summarily dismissed the allegation, stating such a rule “is not, under current Board law, considered an improper infringement on Section 7 rights.”

The GC and CWA have excepted to the Judge’s ruling and have asked the Board to overrule Register Guard. The GC has further requested the Board to adopt a new standard under which “employees who are permitted to use their employer’s e-mail for work purposes [would] have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.”

The General Counsel broadly asserts that a rule that “prohibit[s] employees from using Respondent’s equipment to engage in Section 7 activities such as organizing support for, or opposition to, a labor organization; or discussing, or attempting to discuss, workplace concerns with fellow workers” violates the NLRA. In support of his position, the GC argues that technology has made “email . . . analogous to the water cooler” of years ago, around which employees would gather to talk about their personal and work issues:

Employees have a Section 7 right to communicate at work, and, in technological workplaces, email is the present day water cooler. In the last 10-plus years, the emergence and widespread use of email has transformed the manner in which many employees interact in the workplace. In many workplaces, technology has replaced face-to-face communication in a break room, cafeteria, or other traditional gathering places as the preferred method of communication. As employees increasingly use email as a primary mode of communication, email has, thus, become the “natural gathering place” for non-work-related communication.

The NLRB is considering the GC’s exceptions and proposed rule, and, in a move that many say signals the Board likely will be making a major policy shift, has invited briefs from the parties and interested amici on five questions: whether the Board should reconsider and overrule Register Guard, what standard(s) of employee access to employer systems should be established and what restrictions on access should be put in place; whether the impact on an employer’s communications systems by employees’ use of the systems should be considered; whether the existence of employees’ personal electronic devices and personal email and social media accounts should be considered by the Board; and whether any other relevant technological issues exist which should be taken into account by the Board.

The Board’s ruling in this case could affect dramatically all employers utilizing electronic communications systems (and a great many do, regardless of whether their employees are unionized or not.) If the Union’s and the GC’s position in Purple Communications is adopted, it is likely many employers will have to revise handbook rules and other policies that prohibit employees from using electronic communications systems for non-business purposes to allow for access. Furthermore, employers probably would not be able to stop employees from using employer electronic communications systems to engage in Section 7 activities while on non-work time, unless such use interfered with the “need to maintain production and discipline”, which the employer would have the burden – likely a heavy one — of proving.