Thursday, May 8, 2014

NLRB and Your Company’s Email

The National Labor Relations Board (NLRB) has been very busy the past few years inserting itself into company handbooks, at-will statements, social media policies, as well as its efforts to fast track union elections and hinder employers’ ability to effectively respond to union organizing activity. In yet another effort to usurp employer control and aid unions in organizing, the board is looking to overturn its own decision in Register Guard from 2007 (see here). It issued an invitation for public comment to solicit advocates to submit briefs on the issues, pursuant to its review of Purple Communications, Inc. where the administrative law judge ruled that an employer did not violate the NLRA by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes.

What does this mean? Let’s look at what the decision in Register Guard did for business in this regard. It basically codified (at least under the NLRB’s purview) a concept under which business had and has been operating for many years – that a business has the right to restrict the use of its processes, resources and equipment (including communication systems) to business-related uses only. Makes sense, right? A business should be able to control the use of its own property.

An important aspect to the Register Guard decision was the board’s finding that allowed employers more flexibility in permitting charitable (and personal) solicitations while prohibiting organizational or commercial solicitations, even if that includes union solicitations. As long as the prohibition does not on its face, discriminate against employees’ exercise of Section 7 rights.

For instance an employer’s policy can distinguish between communications that are not of a similar nature:

  • Invitations for an organization vs. those of a personal nature
  • Charitable vs. non-charitable solicitations
  • Solicitations of a personal nature vs. those for the commercial sale of a product
  • Business-related use vs. non-business related use

Your business can have a policy that allows for solicitations for a charity (United Way, Race for the Cure, etc.) but prohibits solicitations for non-charitable organizations such as Pampered Chef, or a union.

Should the NLRB overturn Register Guard, such policies will ostensibly be a violation of the National Labor Relations Act, specifically Section 7 rights of employees to engage in concerted, protected activity to improve their wages, hours and other conditions of work – in other words, to organize. Your email system will then become a free tool for union organizers. What other doors will that open in terms of use of your communication systems? As we all know, unintended consequences can be as bad as those intended. 

It is extremely unfortunate that this board, and the administration that allows it, continues to erode employer rights as to the management and control of their business. Given the ever decreasing numbers of union members, these efforts are very transparent attempts to shore up that flagging institution. Is it really advantageous to our country and our economy to pass laws and regulations that so restrict the rights of the very entities that maintain our economy and therefore, our lifestyle? Does it really make sense to regulate and legislate the health of an entity to the detriment of a whole nation’s economic health?  

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