Are Employers Prohibited From Barring Personal Use Of Their Electronic Systems?

The Obama Administration is doing all it can to make unions relevant in the workplace.  On April 30, 2014, the NLRB asked interested parties to submit amicus briefs on the issue of whether employees should have the right to use the company’s email “for Section 7 activity.”  Of course, Section 7 activity includes unionizing or engaging in concerted activities.  As we know, the definition of concerted activities is broad, and seemingly without reasonable limitation. 

General Counsel for the NLRB is asking that the Board reconsider existing law, which allows an employer limit use of its email system for work purposes.  In other words, the General Counsel wants to force employers to allow employees to use its communication systems to promote messages with which the company disagrees. 

The case in question is Register Guard, 351 NLRB 1110 (2007).  In that case, the Board determined that an employer does not violate the National Labor Relations Act by prohibiting communications “of a similar character.”  Thus, an employer could permit emails of a charitable or personal nature, such as solicitation of Girl Scout cookies or the sale of a personal car, but prohibit commercial speech, such as the selling of Avon products.  The Board concluded that this distinction did not unlawfully discriminate against union solicitations or other Section 7 communications. 

The Board concluded in Register Guard that an employer maintains property rights in its email and other communication systems, and may restrict the use of those systems to protect its property interests.  That seems logical and reasonable to me.  Other than to bestow on unions yet another way to spread their message, the General Counsel’s call for a repeal of the rule is unwarranted. 

The union message is not necessarily the message of hope and better work conditions for employers.  Take, for example, the experience of home care workers and the SEIU in Michigan.  The SEIU and the Democratic governor crafted a deal making home care workers “public employees.”  Assistance checks to those to whom care was given were reduced to pay the workers’ (usually family members) union dues.  When a new Republican governor changed the law allowing home care workers to avoid compelled union status, those workers exited and the SEIU’s membership dropped from 55,000 to 11,000.  (See http://www.michigancapitolconfidential.com/20032 and http://hotair.com/archives/2011/11/11/seiu-picking-pockets-of-families-of-disabled-in-michigan/.)