NLRB considers overruling Register Guard decision. Definitely did not see this one coming. Invites briefs on employee use of employer's electronic communication systems

NLRB invites briefs on employee use of employer's electronic communication systems

May 1, 2014

In Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531; and 21-RC-091584), the administrative law judge, relying on Register Guard, dismissed the allegation that the employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes.

The General Counsel and the charging party, the Communication Workers of America, AFL-CIO, have asked the Board to overrule Register Guard and adopt a rule that employees who are permitted to use their employer’s email for work purposes have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.

To aid in the consideration of this issue, the Board invites the filing of briefs from the parties and interested amici on or before June 13, 2014.

Click here to read the notice and invitation to file briefs.

Text from notice of invitation is below:

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

PURPLE COMMUNICATIONS, INC.

And                                                                                                     Cases  21-CA-095151

  21-RC-091531

  21-RC-091584

COMMUNICATIONS WORKERS OF

AMERICA, AFL-CIO

NOTICE AND INVITATION TO FILE BRIEFS

On October 24, 2013, Administrative Law Judge Paul Bogas issued a decision in

the above-captioned case, dismissing the General Counsel’s allegation that the

Respondent violated Section 8(a)(1) by maintaining a policy prohibiting personal use of

its electronic equipment and systems. Under existing law, “employees have no

statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” Register

Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard

Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In excepting, the General Counsel

and Charging Party ask the Board to overrule Register Guard and adopt a rule that

employees who are permitted to use their employer’s email for work purposes have the

right to use it for Section 7 activity, subject only to the need to maintain production and

discipline.

To aid in the consideration of this issue, the Board now invites the filing of briefs

in order to afford the parties and interested amici the opportunity to address the

following questions.

1. Should the Board reconsider its conclusion in Register Guard that employees

do not have a statutory right to use their employer’s email system (or other

electronic communications systems) for Section 7 purposes?

2. If the Board overrules Register Guard, what standard(s) of employee access

to the employer’s electronic communications systems should be established?

What restrictions, if any, may an employer place on such access, and what

factors are relevant to such restrictions?

3. In deciding the above questions, to what extent and how should the impact on

the employer of employees’ use of an employer’s electronic communications

technology affect the issue?

4. Do employee personal electronic devices (e.g., phones, tablets), social media

accounts, and/or personal email accounts affect the proper balance to be

struck between employers’ rights and employees’ Section 7 rights to

communicate about work-related matters? If so, how?

5. Identify any other technological issues concerning email or other electronic

communications systems that the Board should consider in answering the

foregoing questions, including any relevant changes that may have occurred

in electronic communications technology since Register Guard was decided.

How should these affect the Board’s decision?

In answering these questions, the parties and amici are invited to submit

empirical and other evidence.

Briefs not exceeding 25 pages in length shall be filed with the Board in Washington, D.C. on or before June 16, 2014. The parties may file responsive briefs on or before June 30, 2014, which shall not exceed 25 pages in length. No other responsive briefs will be accepted. The parties and amici shall file briefs electronically at http://mynlrb.nlrb.gov/efile, and serve all case participants. A list of case participants

may be found at http://www.nlrb.gov/case/21-CA-095151 under the heading “Service

Documents.” If assistance is needed in filing through http://mynlrb.nlrb.gov/efile, please

contact Gary W. Shinners, Executive Secretary, National Labor Relations Board. The

briefs submitted by the parties in this case are accessible at

http://www.nlrb.gov/search/documents/21-ca-095151.

Dated, Washington, D.C., April 30, 2014

By direction of the Board:

Gary W. Shinners

Executive Secretary