The Obama NLRB Strikes Another Blow on Behalf of Organized Labor: Employees May Use Company E-Mail Systems to Unionize and Engage in Other "Protected Concerted Activities"

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Most employers have policies or work rules limiting employee use of Company e-mail systems to "business purposes." Many employers have policies or work rules specifically prohibiting employees from using Company e-mail to solicit for outside organizations (such as soliciting fellow employees to join a union). In Purple Communications, Inc., 361 NLRB No. 126, issued on December 11, 2014, the National Labor Relations Board (NLRB) decided that employees must presumptively be permitted to use their employer's e-mail system, during non-working time, to communicate with each other about workplace issues, including but not limited to union organizing efforts.

In reaching this determination, the three Democrats on the Board, over the vigorous dissent of the two Republican members, reversed the 2007 NLRB Decision in Register Guard, which had held that employees have no statutory right to use their employer's e-mail system for engaging in union or other activities protected by Section 7 of the NLRA.

The Purple Communications majority premised its decision on what it deemed "the importance of e-mail as a means of workplace communication," noting that "e-mail remains the most pervasive form of communication in the world." According to the majority, "the workplace is 'uniquely appropriate' and 'the natural gathering place' for such communications, and the use of e-mail as a common form of workplace communication has expanded dramatically in recent years." The majority concluded that, if employees are already provided access to their employers' e-mail systems, then they must also be permitted to use these systems, during non-working time, for union organizing purposes and for any other protected communications about terms and conditions of employment.

It is significant to note that the Board's Decision applies to employees, not non-employees, and does not present outside union organizers with the right to use the employer's e-mail system. It does not require employers to now provide e-mail access to employees who do not already have such access. Nor does the decision reach any employer communication system other than e-mail. And while the decision announces a "presumption" that employees have the right to use the e-mail system for protected communications on non-work time, it also states that employers can at least try to assert "special circumstances" that would allow a ban on such use of e-mail if necessary to maintain production or discipline. (Editor's note: good luck trying to establish sufficient "special circumstances" that would satisfy the present Board!).

Notwithstanding Purple Communications, it is still permissible for employers to prohibit employee use of employer e-mail systems for non-work-related activities during working time, including communications regarding union or other Section 7 activities. But that would be the case only if the employer consistently enforces such rule against employee use of e-mail during working time for other non-work-related communications as well (which most employers do not). Put another way, if an employer does not monitor and prohibit content of non-work-related e-mail sent or received during working time, it similarly cannot lawfully prohibit the use of e-mail during working time for union-related or other Section 7 protected communications.

This NLRB case raises significant issues for virtually all employers, unionized and non-unionized. No doubt there will be appeals from the Board's Decision to the federal appellate courts, but for the immediate future at least, Purple Communications is the law of the land. If you have questions or concerns about how this Decision may impact your policies or work force, particularly your policies regarding e-mail and other electronic resources, "Bring Your Own Device," solicitation, social media, handbooks, etc., please feel free to contact the undersigned or your usual attorney contact at McNees Wallace & Nurick.

NLRB Finds that not all Whining and Complaining Protected by NLRA

Stop me if you have heard this one, an employee was upset about his pay rate…

Seriously, an employee upset about his pay was at the heart of a recent decision issued by the National Labor Relations Board that explored the protections afforded by the National Labor Relations Act ("Act"). The employee in question was hired to perform waterproofing duties on a project at a university in Ohio. The project was a public project, and therefore, it was covered by the applicable prevailing wage laws. The employee, however, was not happy about the prevailing wage rate that he received on the project, and essentially complained about his wage rate throughout the entire time he spent working on the project. In fact, as the foreman testified, the employee complained about basically everything during his brief tenure with the employer.

No Good Deed Goes Unpunished
According to the foreman, the employee "whined" and "complained" throughout the project about nearly everything. The employee apparently constantly voiced his opinion that the company was doing "everything wrong." (You may have heard that one before too!) As it turns out, the employee did receive some pay increases during the term of the project. However, he often told other employees about the wage increases, which led to some discontent and caused at least one long term employee to quit (apparently feeling that he should have also received wage increases even without having to complain). Eventually, the payroll clerk wrote the employee a note on his pay stub that stated, "Please keep your pay to yourself."

Under the Act, employees are permitted to engage in concerted protected activity. This includes discussions regarding terms and conditions of employment, such as wages. Accordingly, the Board quickly concluded that the handwritten statement on the pay stub was a direct restriction on protected activity, and therefore, a violation of the Act.

Some Bad Deeds need not be Forgiven
The employee was laid off at the end of the project, and proceeded to file multiple complaints against the company, including a complaint to the university that the work performed on the project was "shoddy." Before the Board, the employee argued that his termination was retaliation for engaging in protected activity, i.e. complaining about his wages. The company, however, argued that the employee was terminated because the project came to an end and it had no more work for the employee. The Board agreed with the company. The Board concluded that there was no evidence to suggest that the employee's complaints about his pay were the reason for his lay off. The Board noted that the employee had received pay increases after he complained, and that several other employees were laid off at the conclusion of the project.

The employee also argued that the fact that the company failed to rehire him for other projects was in retaliation for his protected activity. The company argued that it would not rehire the employee because of the allegations that he made to the university regarding the quality of the company's work. The Board actually sided with the company on this one, finding that its explanation was credible, and that the statements about the quality of work in this instance were not protected activity.

It seems that employers are regularly finding themselves in hot water with the Board as a result of overly restrictive policies and procedures. Even in situations like the present case, where there were obvious negative consequences following the employee's discussion of his wage rate (another employee quit), the Board will find a violation of the Act. In fact, the Board noted that the motivation for the restriction on the employee's conduct was "irrelevant."

Nonetheless, for some of us it is refreshing to be reminded that there are some limits to the protections of the Act. Indeed, not all "complaining and whining" is protected.
 

Discharge Over Facebook Posting Lawful

On November 8, 2011, we reported that a National Labor Relations Board Administrative Law Judge issued an interesting decision involving an employee who was discharged for posts he made on his Facebook page. The ALJ found that the employee was not discharged in violation of the National Labor Relations Act, because even though some of the employee's Facebook posts were protected, the employee's termination was based on only non-protected posts. Recently, the Board upheld the ALJ's decision, providing helpful guidance to employers on the limits of the NLRA's protections.

On September 28, 2012, the Board affirmed the ALJ's decision in Knauz Motors, Inc. (pdf) The key question was whether the employee was fired for engaging in "concerted protected activity" under the NLRA. At issue were two Facebook posts made by the employee. The first included "mocking and sarcastic" pictures and comments about a sales event. Apparently, the employee was dissatisfied with the food selection for the event, which included hot dogs and water. The ALJ found, and the Board agreed, that since the food choices could impact the employee's commissions, which were a term and condition of his employment, the pictures and mocking comments were "concerted protected activity."
 

The ALJ and the Board took a different view of the second set of Facebook posts, which contained pictures and comments making fun of an accident at a related dealership. The accident involved a 13-year-old boy who was behind the wheel of a vehicle that crashed into a retaining pond. The employee posted pictures of the accident and made some inappropriate comments. The Board affirmed the ALJ's conclusion that these posts did not constitute concerted protected activity because there no was connection to the employee's terms and conditions of employment. Ultimately, the ALJ and the Board held that the employee's discharge was not a violation of the NLRA because he was terminated for the non-protected posts, and not the posts regarding the sales event.

The Board also agreed with the ALJ that some of the employer's policies were overly broad in violation of the NLRA, including the employer's Courtesy Policy. The Courtesy Policy provided: 

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image of the Dealership.

The Board held that the prohibition on "disrespectful" conduct and "language which injures the image or reputation of the Dealership" could be construed to prohibit protected activity, and therefore, was unlawful.

While there is some good news in the Knauz Motors decision, specifically that there are limits to the protection afforded to employees who take to Facebook to mock their employers, there continues to be frustration regarding the broad reading of the NLRA. As a result of the Knauz Motors decision, some employers may need to update their policies, again.

NLRB to Expand Outreach Campaign Targeting Nonunion Employees

The National Labor Relations Board’s (“NLRB”) aggressive campaign to educate non-union employees about their rights under the National Labor Relations Act (“NLRA”) is in full swing.

In addition to the mandatory notice posting requirement that will go into effect for all employers on April 30, the NLRB recently announced its plan to launch a new website designed to educate both union and non-union employees about their rights under the NLRA. These rights include the rights to discuss working conditions and to present grievances to their employers. Under the NLRA, employees have a right to engage in such “protected concerted activity,” even when they are not union employees or involved in union organizing efforts.

The new website will be rolled out in mid-April, just before employers are required to post the Notice of Employee Rights. The NLRB also plans to distribute pamphlets, published in both English and Spanish, addressing workers’ rights and to publicly discuss this information across various media outlets.

This aggressive educational campaign could lead to more complaints from workers. Accordingly, employers should ensure that they have appropriate policies in place that comply with the NLRA. Employers also should ensure that their managers are properly informed of employee rights under the NLRA and trained on how to respond to employee complaints.

We will keep you updated as new developments are announced.