The National Labor Relations Board ruled Friday that workers have a right to use their employer’s email system for the purposes of union organizing. The ruling reversers a 2007 opinion by the board that employees did not have the right since the system was company property.
A 3-2 majority of board members said that employers who try to ban all non-work use of company email servers must prove that “special circumstances make the ban necessary to maintain production or discipline.” Otherwise, employers may not raise objections or otherwise prevent workers from using the system to disseminate union-related materials.
The NLRB said the “importance of electronic means of communication to employees’ exercise of their rights” made the rule change necessary. To do otherwise would be “to smother employees’ rights under a blanket rule that vindicates only the rights of employers,” the majority said. The ruling came in response to a case called Purple Communications and Communications Workers of America.
Organized labor cheered the ruling. “With this decision, the NLRB has taken a major step forward to make sure workers’ rights to organize are protected in the 21st century workplace,” said Bernie Lunzer, president of the Newspaper Guild-CWA.
The board’s two Republican members, Harry Johnson and Phillip Miscimarra, dissented. They argued that the change was unnecessary because there was little preventing employees from creating their own separate email accounts.
“The act has never previously been interpreted to require employers, in the absence of discrimination, to give employees access to business systems and equipment for NLRA-protected activities that employees could freely conduct by other means,” Miscimarra noted.
He also pointed out that the ruling creates a damned-if-they-do and a damned-if-they-don’t situation for employers. On the one hand, since employers are prohibited from monitoring employees attempting to exercise their labor rights, Friday’s ruling would presumably extend that to monitoring email use. At the same time, the board has also held that employers can be liable for inappropriate emails sent by workers using the company system and thus are allowed to monitor employee email use.
“[I]t is unclear how an employer can avoid engaging in unlawful surveillance even when conducting the type of review necessary to determine whether particular emails involve protected activity, whether they are objectionable, and whether or when the employer is permitted to review them,” Miscimarra said.
The majority dismissed that, stating that they were confident that board could evaluate any concerns “by the same standards that we apply to alleged surveillance in the bricks-and-mortar world.”
Sen. Lamar Alexander, R-Tenn., who will become chairman of the Senate Health, Education, Labor and Pensions Committee next year, said the ruling was further proof the board was biased: “At nearly every turn, this National Labor Relations Board has operated as a union advocate — instead of as the umpire it was intended to be. In the new Congress, I will work to roll back this partisan overreach and restore fairness to the board.”
