NLRB Rules Employers May Prohibit Use of Work Emails For Union Activities

In a major reversal handed down yesterday, the National Labor Relations Board overruled a 2014 decision to hold that employers may prohibit employees from using their work emails for union activities. The case does not involve firefighters and the National Labor Relations Act does not apply to public employees. However, given that firefighting is the most highly organized profession in the US and that the NLRB is the “big dog” when it comes to establishing labor relations precedent, the decision is likely to impact fire department computer and email policies in many states.

The case involved a challenge brought by the International Union of Painters and Allied Trades, District Council 16, Local 159, AFL–CIO against Caesars Entertainment, who operates a Las Vegas casino and hotel. The union claimed the employer’s policy that limited their use of their work computers and email for non-work matters violated the NLRB ruling in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091531, and 21-RC-091584 (December 11, 2014).

The Purple Communication ruling reversed prior precedent by “holding for the first time in the history of the Board that employees do have a right to use employer-owned equipment for nonwork purposes.”

As summarized by the NLRB in the Caesars Entertainment decision:

• The issue before us is whether the National Labor Relations Act requires [Caesars] to permit employees to use its email and other information-technology (IT) resources for the purpose of engaging in [concerted] activities protected by Section 7 of the Act.
• The [employer] indisputably has a property right to restrict employee use of its equipment, including its IT resources.
• The question presented here is whether that property right must give way where employees seek to use the Respondent’s IT resources for Section 7 activity.
• In deciding this issue, we are guided by the Supreme Court’s admonition that “[o]rganization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.”
• The Board has long held that with regard to oral solicitation during nonworking time and the distribution of literature during nonworking time in nonworking areas, the Act does limit an employer’s property right to control the use of its premises.
• The Supreme Court approved this “adjustment between the undisputed right of self-organization assured to employees under the” Act and “the equally undisputed right of employers to maintain discipline in their establishments” in its seminal decision in Republic Aviation Corp. v. NLRB.
• But decades of Board precedent establish that the Act generally does not restrict an employer’s right to control the use of its equipment.
• In Register Guard, the Board held that this precedent, and the principle for which it stands, applies with equal force to an employer’s email system.
• [T]he Board’s unprecedented decision in Purple Communications impermissibly discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity.
• Accordingly, we shall overrule Purple Communications and return to the standard announced in Register Guard.
• Under that standard, employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.
• However, we shall recognize an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.

The full impact of the NLRB’s decision on fire department policies will largely be determined by whether state labor relations boards and state courts choose to follow Purple Communications or Caesars Entertainment. Departments that altered their policies to meet the concerns raised by Purple Communications, may want to discuss with local counsel the advisability to reverting to their pre-2014 language.

However, it is important to understand, any changes made to policies as a result of Purple Communications remain lawful and compliant with collective bargaining laws. They just are no longer mandated under the NLRA.

Here is a copy of the decision.

Here is another review of the decision.