Does Your Email Policy Pass Muster? New NLRB Decision Offers Guidance

08 July 2013 Labor & Employment Law Perspectives Blog

Amidst the flurry of major legal announcements see here and here from the U.S. Supreme Court in the last couple of weeks, a recent NLRB decision slipped through barely noticed, yet it may have more practical consequences for human resources personnel dealing with real-world problems. For many years now, internal and external emails have become a key workplace communication tool, replacing older traditional means, and it has become a hot issue as to whether unions are entitled to access and use internal email systems for their own communications. In 2007, a sharply divided NLRB board majority ruled that an employer could prohibit use of its email system by outside organizations (such as labor unions) even though it allowed employees’ personal use for non-business communications.

This decision did not sit well with organized labor, and a more labor-friendly NLRB has signaled a desire to revisit the Register Guard reasoning. Indeed, last year the Board, faced with a union physical access case in Roundy’s, Inc., invited interested parties to file briefs on the issues including the question of “what bearing, if any, does Register Guard, 351 NLRB 1110, have on the Board’s standard for finding unlawful discrimination in non-employee access cases.” Considering that inviting briefs often precedes a major change in Board policy and that the issues in Roundy’s had nothing to do with emails, many concluded that the Board was stretching to find a suitable vehicle to reverse Register Guard. Indeed, many Board watchers predicted that the NLRB was poised to mandate that employers had to permit unions to use a company’s email system to communicate on matters concerning employees’ terms and conditions of employment, so-called “Section 7 matters.”

It is, therefore, a matter of some surprise that two weeks ago the Board in Weyerhaeuser, where it had an apparently golden opportunity to reverse its 2007 decision, ducked the issue and agreed with the administrative law judge that the employer’s policy was valid under the principles established in Register Guard.

At least for the moment, employers can rest somewhat easier. The Board noted that Weyerhaeuser had an “electronic media use” policy “which restricted employee use of its electronic media to ‘business purposes only’ and provided for limited personal use only with managerial consent.” So long as an employer’s policy restricts the use of its “electronic media” to “business purposes” and so long as it monitors and restricts personal use, the probabilities are now higher that the NLRB will conclude that it has not opened its systems to unions attempting to organize or communicate with employees. For the moment, that is the law, but Roundy’s, and the signal from the Board that it might be looking for opportunities to reverse Register Guard, is still lurking out there, so stay tuned.

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