An administrative law judge rejected the challenge last fall, citing a 2007 case, Register-Guard, which was decided during the Bush administration. That case upheld employer policies that prohibited employees from using employer communications devices for union-organizing purposes and other non-work-related communications.

Not so fast, said the general counsel's office in the Los Angeles region of the NLRB. It's time to take another look at such policies to see if they're still valid and whether technological advances since 2007 should also be considered when framing such policies.

The L.A. region board rejected the administrative law judge's dismissal of claims because the specific workers — call center employees — had few options at work if they wanted or needed to discuss the work environment with one another. They worked at various locations and staffed around-the-clock shifts that prevented much face-to-face interaction among them.

Writing on behalf of the NLRB general counsel, agency lawyer Cecelia F. Valentine said: "It is the position of the General Counsel that, contrary to the board's decision in Register-Guard, employees have a statutory right to use their employer's electronic communications system for Section 7 activities, subject only to the employer's need to maintain production and discipline." [Emphasis added.]

Valentine cited a 1945 decision, Republic Aviation Corp. v. NLRB, as the precedent for this potential unwinding of Register-Guard.

"The General Counsel urges that Register-Guard be overturned, and that a presumption be adopted that a total ban on employees' right to communicate about non-work matters through using their employer's equipment and/or email system is unlawful.

"Complete bans on personal email are more restrictive than necessary to achieve employers' legitimate business goals. … Even if Section 7 email communications intrude to some extent upon an employer's business interests, the board has recognized that limited intrusions are warranted to accord 'commensurate recognition to the statutory right of employees to communicate about workplace issues.'"

For that one, she cited a 1962 case, Stoddard-Quirk.

Then, she took matters a step further, urging revisions in such policies based upon the advancements made in workplace technology.

"Employees have a Section 7 right to communicate at work, and, in technological workplaces, email is the present day water-cooler. In the last 10-plus years, the emergence and widespread use of email has transformed the manner in which many employees interact in the workplace.

"In many workplaces, technology has replaced face-to-face communication in a break room, cafeteria, or other traditional gathering places as the preferred method of communication. As employees increasingly use email as a primary mode of communication, email has, thus, become the 'natural gathering place' for non-work-related communication."

The latter is supported, Valentine said, by a 1978 case, Beth Israel.

Because of the specific conditions under which Purple's people work, Valentine wrote, "it may be that email, whether accessed at work during non-working time or from one's home computer or smart phone, is the only 'water cooler' where respondent's employees may gather to discuss subjects such as their terms and conditions of employment and the relative pros and cons of being represented by a union."

Under such conditions, the company policy makes it extremely difficult for these workers, who rarely see one another and are at various locations, to discuss workplace conditions and possible union affiliation. Ergo, Purple's policy "deprives employees of a valuable medium in which to communicate concertedly about Section 7-related subjects."
Valentine said there were plenty of ways Purple could deploy safeguards to keep company intellectual property protected and to prevent employees from abusing the company's communications system.

"Given the existing and available safeguards respondent may employ instead of the complete ban on personal use of respondent's email system, the policy is more restrictive than necessary, thus its maintenance constitutes a violation Section 8(a)(1) of the (NLRB) Act," she concluded.

The NLRB's general counsel has requested that the board "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." [Emphasis added.]

The board is now seeking input as it crafts its new policy and is giving interested parties until June 16 to respond. Among the questions it has posed as it considers what to do:

1. 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?

2. 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?