As has been well-chronicled, during the past months, the NLRB has issued several pro-labor decisions. (See NLRB Overrules Precedent on Disclosure of Witness Statements to Unions, NLRB Revisits Disclosure of Witness Statements, Witness Statements May Not Be Protected from Disclosure to Union, NLRB Says, and NLRB Releases Important End-of-Year Decisions.) Others, such as the NLRB’s Tri-Cast decision, in which the NLRB gave employers wide latitude in communicating with employees about the consequences of unionization to their personal relationships with their employer, appear ready for the chopping block. Now a 2007 NLRB decision giving employers the right to prohibit their employees from using business e-mail for personal use [Register Guard, 350 NLRB 1110 (2007)] may be in jeopardy of being overruled in light of the position taken by the NLRB’s Acting General Counsel in connection with a recently released 2012 NLRB Division of Advice memorandum. In Alpine Access, Inc., Case 07-CA-068538 (June 5, 2012), the NLRB’s Division of Advice issued a Memorandum in which it decided that Register Guard is not applicable to a virtual workplace and urging Region 7 of the NLRB to use that case to argue to the NLRB that, contrary to the decision in Register Guard, employees presumptively have a statutory right to use their employer’s communications systems, subject to the employer’s need to maintain production and discipline. Although the Alpine Access case was later settled, it is clear the Acting General Counsel will seek another case to attempt to persuade the NLRB to reverse Register Guard.

Alpine Access Inc. provided virtual call-center services to various entities in different industries. All of the employer’s “Customer Care Professionals” (CCP) worked from home and, therefore, had no face-to-face interaction with other CCPs. In early November 2011, a CCP began union-organizing efforts by, among other things, sending messages to fellow CCPs via the company’s Yahoo Instant Messaging (YIM) system. (The company also had five web-based chat rooms, one of which was called “water cooler”.) In response, an assistant team leader told the CCP’s fellow CCPs: “Do not speak to the Charging Party...if he approaches, it is imperative that you contact me at once...thanks.” 

The CCP also sent a mass e-mail from his work e-mail address to all CCPs about the organizing campaign. In response, the employer’s employee relations manager called the CCP and threatened to terminate him if he sent another mass e-mail “of that nature”. 

In Register Guard, the NLRB had held that employees had no statutory right to use an employer’s email system for Section 7 matters. Nevertheless, in Alpine Access, the Division of Advice decided that the employer’s computer/communications policies restricting personal use by employees were unlawful and had to be rescinded. It noted that, in Register Guard, the Board had expressly held that its decision was not necessarily applicable to circumstances such as that which existed in Alpine Access – where there is no means of communication between employees at work other than by e-mail. The Division therefore found that under the facts of this case, the employer had to allow its CCPs to use its e-mail system to send personal messages. However, the Division noted the employer could “lawfully integrate its own legitimate managerial and business concerns and formulate a new policy that balances its employee’s Section 7 rights with its need to maintain production and discipline.”

The Division did not stop there. It also urged the Region to use the Alpine Access case to convince the NLRB to overrule its Register Guard e-mail use ruling even in connection with traditional workplaces. 

Register Guard is just another in an increasingly long line of cases the new Board and Acting General Counsel appear to be targeting. This Advice Memorandum also serves as a warning to employers, particularly those with so-called virtual workplaces, to consider permitting their employees to use e-mail for personal use, subject to the need to maintain production and discipline.