The NLRB, right now, is union-friendly. We know it. Employers know it. Politicians know it. The unions know it.

It’s stacked 3-2 with Democrat appointees so the NLRB taking its training wheels off and is doing what it has always done. It has shifted its decisions based on the politics.

Yesterday represented just the latest in a long line of decisions where the NLRB has suddenly “seen the light” from a prior decision and overrules itself without much real logic.

It’s not right or wrong. This is just how the NLRB works. When Republicans controlled the Board, it did the same thing.

The NLRB rewrites its decisions. And creates fantastical changes with the use of a crayon (or pen, or keyboard) — just like that childhood story about Harold.

So, yesterday’s decision in Purple Communications, Inc. regarding the usage of an employer’s e-mail system should come as no surprise (and won’t be if you attended my firm’s Labor & Employment seminar in October where we talked about this case coming down just like this.)

I asked one of our labor gurus and a frequent blog contributor Jarad Lucan, to first recap what is going on.  He talked about this case at our October seminar:

Oh, 2007. Those were the days for employers.

The Sopranos made their exit. The last Harry Potter was released.

And the NLRB issues the Register Guard decision (see Dan’s post from way back then).  

The decision said that employees had no rights under labor law to use an employer’s email system, let alone to use it for statutorily protected communications, such as union organization efforts, as long as the restrictions placed on the email system by the employer were nondiscriminatory. 

According to the Board:

Nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.   That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. 

Yesterday, a divided Board overruled Register Guard declaring that it was incorrectly decided.  

In its Purple Communications Inc. case, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system.” 

Put differently, if an employer has allowed its employees to use its email system for non-work related  reasons (i.e., incidental personal use), then an employer must also allow those employees to use its email system for communications protected under the Act, such as communications about union organization efforts or the scheduling of solidarity marches to protest the employer’s conduct. 

The decision, however, does give an employer who allows incidental personal use of its email system the option of completely banning non-work use if it can point to special circumstances warranting such a prohibition.   Because such a decision would likely decrease employee morale and productivity, it begs the question whether the Board left employers with any option at all.

Obviously, any initial impressions on this case are just that.   In addition, this may not be the final word on this issue as an appeal is likely to be taken by the employer. 

However, one implication that immediately stands out is an employer’s continued ability to monitor its  email system.  Arguably, an email system is one of an employer’s most expensive and most important business assets. This is precisely why employers have a strong interest in monitoring the communications that flow in and out of that system (often in an effort to identify and isolate harmful viruses). 

Following the Board’s decision, query whether an employer may be limited in its ability to monitor its employees communications, particularly those that involve discussions about unionization or other communications protected by the Act for fear of possible claims being filed by employee for interfering with their rights under the Act.  In fact, because an employer may violate the Act by maintaining a policy that may have the effect of chilling employee communications protected by the Act, any policy related to wholesale monitoring of its e-mail system could be illegal.

Jared’s right to urge a bit of caution as I’ll highlight below.  Technology changes. Fast.

But as you look over this case, I also commend to you a very good recap from Labor Relations Today, a long-standing labor blog that you really should be following. Seth Borden and his group sum up the decision this way:

Employers should review the Purple Communications decision carefully. It may be true that many, if not most, employers who provide employees with email access for business purposes also tolerate some level of personal use. But for those who have chosen to limit use to business-use only, the Board has today announced a seismic shift in its jurisprudence. This decision has opened the door for employees, and by extension the unions they support, to use employer email systems – and perhaps additional employer equipment — for union organizing activities. Accordingly, employers should review their current email and computer usage policies to ensure that they comply with the Board’s new standard. Moreover, an employer who believes it has “special circumstances that [would] justify specific restrictions,” should develop its position and compile as much supportive data as possible while structuring its policies.

Other good insight can be found in posts from LXBN, such as this from Proskauer’s Labor Relations Update:

Bigger questions loom about the importance of the decision. As the dissents pointed out, the decision introduces uncertainty for employers, who now must figure out what type and how many “restrictions” are needed and whether they can be justified to the Board; and who must now navigate the shoals of monitoring employee email and the risks of unlawful surveillance that can pose.

Query how important the decision is to unions and employees. Certainly a decade ago it would have been more important, but as the dissents also note, the technological revolution of the past few years has provided myriad means of electronic communication available to employees and unions, which do not depend at all on the use of or access to employer email.

I think that last point is the most crucial.  With the rise of social media and texting, the employer’s e-mail system takes on a lesser role. It’s not nothing, but labor unions have been using new communications tools since 2007. The question for now is: Will they go back to an employer’s e-mail? The ease of it may be too inviting.