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Labor Board Paves Way for Employers to Ward Off Union Emails

Jan. 9, 2020, 11:15 AM

Employers can likely bar their employees from sending union-related emails without unlawfully discriminating against unions as a result of a pair of recent National Labor Relations Board rulings, management attorneys said.

The NLRB ruled last month that workers don’t have a statutory right to use employers’ email systems and other digital resources for organizing purposes. Although that decision didn’t spell out a legal test for determining whether restrictions are unlawfully biased, the board’s earlier ruling on site access strongly suggests companies have wide latitude to single out communications related to organizing in the workplace, multiple lawyers said.

Restrictions on using employers’ email seem primed to have the greatest impact in white-collar workplaces and other computer-intensive jobs. Unions have made high-profile gains in recent years in organizing media companies while making in-roads with employees of video game companies and other tech workers. Many of those workers rely heavily on communicating electronically.

Tight employer constraints are likely to have a limited effect on coordinating union drives at companies because organizers already avoid company email before going public with a campaign. But they may have a chilling effect on individuals engaging in the kind of collective action taking place at major companies like Google and Facebook.

Moreover, public union drives could be put at a disadvantage if organizers can’t counter anti-union communications from management during contested representation elections. For example, email played an important part in the latter stages of the drive to unionize the Los Angeles Times, according to L.A. Times Guild organizer Kristina Bui. Now unions will have to get more creative with messaging, she said.

“It’s going to be the responsibility of new organizing newsrooms to find a way to take back that narrative,” Bui said. “Because that’s what organizing is: It’s about figuring out how to message your vision. And taking away company email definitely muzzles that a little bit.”

All Company Tech Covered

Workers lost the unfettered right to use company email for unionizing and other collective action last month, when the Republican-controlled NLRB overturned the Purple Communications ruling, which was issued by a Democratic-majority board in 2014. The board’s decision in Caesars Entertainment d/b/a Rio All-Suites reinstated its standard for employer control of email systems from its 2007 ruling in Register Guard.

The NLRB also said in the Caesars/Rio decision that workers don’t have the right to use any company equipment, including IT systems, for collective action. That’s expected to cover electronic communication channels beyond company email, such as Slack, Skype, or personal email accounts accessed on company computers.

Employers can curb workers’ union-related electronic communication as long as other reasonable means exist for workers to contact one another, the board said. More crucially, they’re not supposed to discriminate against workers’ federally protected right to organize.

The Caesars/Rio case didn’t involve allegations of biased enforcement of the employer’s email policy, so the NLRB said it wouldn’t address how the decision affects its discrimination standard from its ruling in last year’s Kroger case.

In September, the board allowed a Kroger supermarket to eject a union activist from its parking lot despite letting several charitable organizations solicit on its property. The Kroger standard calls for a close comparison of the activities that are permitted and barred, requiring disparate treatment of highly similar conduct to find discrimination.

Selective Enforcement Possible

The combination of Caesars/Rio and Kroger means employers can institute a blanket policy allowing company email to be used for business purposes only, but enforce it specifically against workers sending union-related messages, said Brian Balonick, an attorney at management-side firm Cozen O’Connor.

A company could discipline a worker for an email inviting coworkers to a union meeting, for example, even if it didn’t sanction the same worker for previously sending nonwork emails, he said.

“Employers have the argument that they think that kind of union communication is very different,” Balonick said. “Kroger makes clear it has to be apples-to-apples communication. The employer will win that argument.”

The logic of Kroger signals that the board will adopt a biased enforcement test similar to what was in place in Register Guard, which allowed for specific types of email restrictions, said Daniel Schudroff, attorney with management-side firm Jackson Lewis.

In that George W. Bush-era ruling, the NLRB said illegal discrimination means disparate treatment of similar emails because of their union or legally protected status. Under that test, it would be illegal to allow one union to solicit through email but bar a different one from doing the same, the board said. But employers could distinguish between categories, such as charitable versus noncharitable solicitations, invitations for organizations as opposed to personal invitations, or solicitations compared with mere talk.

Bad Optics, Poor Morale

Such blatant discrimination of email use could backfire by angering employees and providing another reason to unionize, according to Christian Sweeney, deputy organizing director for the AFL-CIO, the country’s largest federation of labor organizations.

“Woe to the employer that wants to raise the privacy issue of them snooping around in people’s email,” Sweeney said, adding sarcastically: “What a great way to tell your employees that you love them, trust them, and they don’t need a union.”

Email has become such a widely used means of communication in the workplace that it’s more akin to a common gathering place than a piece of employer property, said Mark Zuckerman, president of the progressive Century Foundation think tank. If employees can gather for nonwork chats in the company cafeteria, why can’t they do so over email, Zuckerman asked.

“Cutting off the main artery of communications that serves many employees right now seems pernicious and intentional by the board, to try to minimize organizing activities or other communications regarding terms and conditions of employment,” Zuckerman said.

Deciding What’s Prudent

With Caesars/Rio and Kroger at their disposal, companies also can tailor their solicitation and email policies to prohibit union-related emails and allow other nonwork communications, said Sara Kalis, a labor lawyer with Paul Hastings who represents employers.

An employer could make exceptions for the types of solicitation emails they want to allow, such as those for charity or from company-sponsored employee resource groups, Kalis said. Then it could spell out that the email system cannot be used for anything that would violate the solicitation policy, she said.

But some management-side attorneys said employers would be more prudent to avoid singling out union-related emails in the design and enforcement of their electronic communication restrictions.

What qualifies as union and other protected activity isn’t clear, static, or neatly labeled as such, said David Phippen, an attorney who counsels employers at Constangy Brooks, Smith & Prophete. Workers seeking to engage in protected activity often make adjustments so their conduct fits the parameters of the law, Phippen said.

Board Direction Uncertain

The combination of the length of time it takes for the NLRB to adjudicate cases and the looming presidential election creates significant uncertainty about whether the board’s current majority will remain in place, lawyers said. That means what employers can do now may eventually be unlawful under a reconstituted NLRB.

The five-member NLRB currently has three Republican members and two empty Democratic seats. Marvin Kaplan’s term is set to expire in August and William Emanuel’s will close in August 2021. Chairman John Ring’s tenure is scheduled to end in December 2022.

The changing NLRB precedent on workers’ right to use company email for union purposes—which has flip-flopped over the last three presidential administrations—illustrates the instability of board case law.

“I guarantee you that an unfair labor practice charge filed today won’t be adjudicated by the board before 2022,” said Steven Suflas, an attorney with management-side firm Ballard Spahr. “If you ask me what the rules are going to be in 2022, the answer is I don’t know.”

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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