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.