NLRB Restores Employer Right to Restrict Employee Email Organizing

An employer’s email system is as much private property as its computer equipment or real estate. The National Labor Relations Board once again, if belatedly, has affirmed this fact. On December 16, the board in Caesars Entertainment voted 3-1 to reestablish the right of an employer to restrict employee use of company email and other information technology during nonworking hours. The ruling overturns the board’s Obama-era ruling in Purple Communications, which had concluded employees have a statutory right to use employer email for union purposes. Employer groups see the decision as vindication of property rights, free speech rights, and especially cyber security. Union officials and supporters, understandably, are taking a different view.

With email having become established at the workplace, it was inevitable that disputes would arise over its availability to promote unions. Employers generally hold that their email systems ought to be used for workplace issues that advance the interests of all concerned; organizing drives and other union activity, in this view, lie outside the scope of authorization. Organized labor officials counter that workers, at least while off the clock, have the right to conduct union drives and otherwise promote union interests, a right protected by Section 7 of the National Labor Relations Act (NLRA). As precedents, they cite prior NLRB rulings upholding the right of unions to use employer real property over the employer’s objections (e.g., Sandusky Mall Co. and Roundy’s Inc.).

Yet this position runs into several complications. First, Section 7 of NLRA, while applying to all employers and not just unionized ones, does not explicitly grant employees the right to use employer-provided equipment for union activity. Second, “nonworking time” is a subjective term that varies by firm and industry. Third, employees do have alternatives to conduct union organizing and business, especially blog and social media sites. Fourth, employers, in an effort to insulate themselves from a “level playing field” legal challenge, may reluctantly respond by authorizing employees to use email for many outside activities in addition to unionism. Fifth, by allowing unions access to its email, especially if the system is web-based, an employer unwittingly may be providing opportunities for outside hacking. Finally, the U.S. Supreme Court and the NLRB over the years have upheld an employer’s right to establish a “no solicitation/no distribution” policy for use of physical property; NLRB rulings here include Hammary Manufacturing Corp., Adtranz, and Johnson Technology Inc.

The National Labor Relations Board’s first major test in the context of employee email usage occurred in 2007. In Register Guard [351 NLRB 1110 (2007)], the Board ruled 3-2 that an Oregon newspaper was within its rights in banning employees from communicating via employer email during nonworking hours “for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations,” and in enforcing that ban on a particular employee. Employees of an affiliate of the Communications Workers of America (CWA), the board concluded, had no statutory right to use their employer’s email system, though the employee in question could not be punished for providing information (as opposed to advocacy). A District of Columbia federal appeals court, however, overturned the decision in July 2009 because the employer did not differentiate between different purposes of solicitation.

With the Obama era underway, the National Labor Relations Board, albeit delayed by disputed appointments, eventually gained a pro-union majority. A reversal of Register Guard now was likely. And in December 2014, it happened. By 3-2, the board ruled in Purple Communications Inc. [361 NLRB 1050 (2014], in response to a complaint by the Newspaper Guild, another CWA affiliate, that in accordance with NLRA Section 7 a Sacramento-based provider of sign language services could not ban employees from using its email system for union functions during nonworking time. While limited in its scope, the decision gave a green light for activists across a wide range of unions to expand their ranks via online.

During the Trump era, the pendulum swung back given the 3-2 Republican member majority. In December 2017, newly-appointed NLRB General Counsel Peter Robb issued a memo recommending a revisit of Purple Communications. A test case emerged soon enough. And three weeks ago, on December 16, the NLRB in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino [Case 28-CA-060841] reestablished the authority of an employer to restrict employee email use during off-work hours. Ruling for the majority were Chairman John Ring and Members Marvin Kaplan and William Emanuel. Dissenting was Member Lauren McFerran, whose five-year term expired that very day. In this case, a Las Vegas affiliate of the International Union of Painters and Allied Trades had filed an unfair labor practices complaint against a hotel-casino, arguing that the facility’s management had no right to bar employees from using its email and other information technology. The NLRB disagreed, saying that as long as an employer does not single out unions for disparate treatment, it isn’t violating NLRA Section 7. The board, however, did provide an exception in cases where an employer-provided email system is the only means by which employees can communicate during workday off-the-clock hours.

In Caesars Entertainment, hotel-casino management over the years had distributed about 3,000 copies of its employee handbook. Under the section “Computer Usage,” the guide clearly laid out the circumstances under which workers may or may not use company computer equipment. “An employer’s communication systems, including its email system,” concluded the NLRB majority, “are its property. Accordingly, employers have a property right to control the use of those systems.” The board added that employers who had changed their computer policies in the aftermath of Purple Communications, should review these policies and, if necessary, restore them to what they had been before.

The lawyer for the Painters union affiliate who filed the complaint, David Rosenfeld, a partner at the Alameda, Calif.-based Weinberg, Roger & Rosenfeld, PC, expressed doubts that the decision will resolve the issue. “I think the ruling could also create a bigger problem for the Board and for employers,” he told Bloomberg Law. “No modern employer who restricts email access enforces that strictly. There will always be managers and others sending emails home saying, ‘I’m about to leave the office,’ so how do you enforce a policy like that in a nondiscriminatory way?” As part of the Caesars Entertainment case, the AFL-CIO, National Nurses United and other unions had submitted an amicus brief to the NLRB defending the earlier Purple decision as striking a sound balance between employee rights and management interests.

That balance, however, was less than even. And unions have been the clear beneficiaries. In an October 5, 2018 amicus brief, the Coalition for a Democratic Workplace, the U.S. Chamber of Commerce, the National Retail Federation and other employer groups called for Purple Communications to be overturned in favor of the Register Guard standard. The brief read:

In the few years since its passage, [Purple Communications] has exposed employers to exponentially increasing, unnecessary risk. Cyber security threats have substantially increased both in volume and sophistication, especially those targeted at – and in some cases, created by – companies’ own employees. Moreover, the potential damage to employers from such breaches has drastically increased, as more and more confidential, private, and business information is stored electronically on servers rather than in paper format, and therefore susceptible to cyber-crime. This rise in electronically stored confidential business information, along with the corresponding increase in data infiltration and piracy efforts, mandate that employers’ property interests in their mail and information systems be given greater import than the Board granted in Purple Communications.

The brief later cited numbers. More than 60 percent of online external attacks since 2013, noted the coalition, have targeted employee email. Moreover, the volume of spam emails with malware links or attachments quadrupled in 2016 alone.

Employers across the country have every reason to be concerned over compromises in their cyber security, especially if there is a strong likelihood that such breaches originate with unions and union contractors. There is no reason why an employer should have to bear the financial burden of rectifying such breaches. The National Labor Relations Board’s decision in Purple Communications has contributed to this state of affairs. The board’s reversal last month in Caesar’s Entertainment was overdue. Unions have the right to organize and otherwise communicate with members. But for now they will have to do this without relying on their employer email network.