NLRB dodges critical employer policy issue


After a lot of hullabaloo, the National Labor Relations Board (NLRB) has opted to leave employers hanging when it comes to one common employer policy. 
The policy in question: Prohibiting employees from using company equipment, particularly email, for personal matters.
A lot of employer policies have prohibitions similar to this, and the NLRB seemed posed to rule on whether or not such policies are still legal.

Much ado about nothing

Back in 2007, the NLRB ruled in a famous case involving newspaper publisher Register Guard that employer prohibitions against employee use of company email for non-work-related purposes was legal.
The NLRB said in the ruling: “… employees have no statutory right to use the[ir] Employer’s email system for Section 7 purposes.”
Section 7 of the National Labor Relations Act gives employees the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Translation: It gives employees the right to discuss the terms and conditions of their employment, because prohibiting such discussions could stymie union organizing efforts.
The Register Guard issue came up again recently when a labor organization filed charges against Purple Communications, a company offering text and video services for deaf and hard-of-hearing individuals. The charges claimed the company’s policy prohibiting employees use of electronic equipment and systems unlawfully restricted employees’ rights to discuss the terms and conditions of their employment — and was instrumental in causing a union to lose an election.
An administrative law judge (ALJ) dismissed the claim, basing his decision on the NLRB’s 2007 decision in the Register Guard case.
Unhappy with that decision, the defeated labor organization took its case to the NLRB, which agreed to revisit the Purple Communications case.
And in doing so, the NLRB invited organizations to submit their opinions on whether it should revisit the Register Guard ruling.
The gut reaction from the employment law community was: No-personal-use email policies were doomed.
But instead of shooting down the policies, the NLRB, as part of its decision in the Purple Communications case, announced it would hold the email policy issue “for further consideration.”
In other words, employers will have to wait (indefinitely) for a definitive decision on the issue.

Ordered a new election

The NLRB did, however, order a new election in the Purple Communications case. It found fault with another one of the company’s policies — one that prohibited employees from “causing, creating, or participating in a disruption of any kind during working hours on Company property.”
The board said the breadth of the rule, which it considered “considerable,” could have discouraged employees from engaging in permissible types of union campaigning — and thus could’ve considerably affected the election results.