United States: Open The Floodgates: "Reply All" Now Also Means "Easy Union Organizing"

Well we pretty much knew this day was coming. Your email system has just become a union's most effective tool to organize your employees.

In May of this year, >we predicted the National Labor Relations Board would overturn its 2007 Register Guard decision in which the Board determined, along political lines, that employees have no specific legal right to use employer email systems for non-business purposes such as union organizing. Since the ruling, Register Guard has stood as an important decision establishing an employer's right to control its email system in a manner so as not to permit subversion of the system for union organizing purposes.

Regular readers of our Labor & Employment Law Perspectives blog will remember the many times we have reported on the Obama-era NLRB's aggressive turn in the direction of expanding employee rights – and more critically, union organizing advantages – which in some cases has included overturning decades of long-followed NLRB precedent. This now indisputable political shift has culminated in what may ultimately become the most significant decision of the Obama-era Board. On December 11, 2014, the NLRB, once again acting strictly along party lines, overturned Register Guard, with the Democratic-appointed majority calling the 2007 decision "clearly incorrect."

Using aggressive language to attack the reasoning of Register Guard, the current Board majority claimed the 2007 Board "abdicated its responsibility to adapt the [National Labor Relations Act] to the changing patterns of industrial life." The majority then attempted to make a point of labeling its decision in Purple Communications, Inc. opening up company email for union organizing as "carefully limited" and claiming both that it only applies to workers who have access to the employer's email system and suggesting employers could avoid having their email platforms hijacked for union organizing by imposing a complete ban on company email use for non-work purposes. However, the Board then immediately qualified its statement by declaring that such a ban (and therefore any preclusion on using work email for union organizing) could only be valid if an employer can identify "special circumstances" – a term then left undefined by the NLRB – making such a prohibition appropriate. The Board also claimed employers could apply "uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline," but again failed to give any guidance on what employers can or cannot do. And even if employers can apply such controls to enforce discipline and productivity requirements, what they cannot do is preclude union organizing by email absent unidentified "special circumstances." The Board then hammered home the practical inability of an employer to prevent union organizing by email in stating, "we anticipate it will be the rare case where special circumstances justify a total ban on nonwork email use by employees."

In other words, the NLRB has just said that for almost every employer, if it has a company email system, it must allow any employee with access to that email system to use it for union organizing, regardless of any usage limitations the employer might otherwise impose on company email use.

While a federal court of appeal could refuse to enforce the Board's decision as applied to Purple Communications itself, the Obama-era Board has shown it has no reluctance in continuing to apply its legal determinations that the federal courts of appeals have found to be erroneous – one need look no further than the Board's ongoing insistence on applying its D.R. Horton ruling finding class action waivers in arbitration agreements to be unlawful in the face of repeat appellate court decisions finding D.R. Horton to be at odds with clear U.S. Supreme Court precedent. Employers should thus expect unions to start immediately seeking access to company email systems and the Board to endorse such efforts by finding unfair labor practices (including in cases already pending before the Board) irrespective of what any federal court of appeals says on the matter. Consequently, until and unless this issue either reaches the U.S. Supreme Court and is overturned, or a newly constituted, less dogmatic Board majority either dials back Purple Communications or gives employers more freedom to restrict email use to only work purposes, the prevailing federal labor law is that unions have virtually unimpeded access to employer email systems for organizing and other union business purposes.

We hope you will pardon the somewhat dire tone of this post, but the practical ramifications of the Board's decision should not be dismissed as trivial or insignificant. Unions now have an incredibly effective, efficient, and easily used tool to advance their organizing efforts, and employees can now bounce these organizing emails around with the click of a button and a handful of keystrokes. It is not hard to imagine impassioned and even incendiary company-wide emails starting to circulate debating pros and cons of unionization that will sow discord in the workplace and create significant distraction. And enhanced effectiveness of union organizing and workplace disharmony are only some of the immediately obvious consequences of the Board's decision. Many employers either actively monitor their email system usage or have the capability to do so, creating immediate risks of claims by union agitators of improper employer surveillance of protected concerted activity. Union adherents can also now engage in protected concerted activity at the touch of a button, and it will be extremely difficult for an employer to say it had no knowledge of an employee's union activity in the event of a challenged disciplinary decision. We may only be scratching the surface of the potential ramifications of the Board's seismic shift in Purple Communications.

Employers should brace themselves for a brave new world of union organizing that is now surely to begin. While it might have been in the cards that the NLRB wanted to open up employer email systems for union organizing, the potential consequences and parameters of that decision, particularly those relating to the Board's poorly defined "special circumstances" and "controls to maintain production and discipline" caveats, are likely to undergo further development in the wake of the Purple Communications decision. For employers immediately concerned about union organizing at their workplaces, it is an important time to connect with labor counsel who can help you explore responsive strategies and craft potential solutions to this brave new world.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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