The National Labor Relations Act (NLRA) provides employees with the right to self-organize or join a labor organization and to engage in concerted activities. Historically, employees gathering at the water cooler is considered protected, concerted activity. Activities become concerted when an employee is representing other employees or when more than one employee is speaking. This becomes a protected activity when the topic is about work conditions, such as wages and hours or seeking representation. Non-unionized private sector employers as well as unionized employers are forbidden to interfere with this employee right.
Employers need to be aware that their policies can interfere with this right, even when their policies are not enforced. For instance, employers must allow employees the ability to solicit and distribute on company property during non-working hours. The Supreme Court affirmed this National Labor Relations Board ruling in 1945.
More recently, the National Labor Relation Board (NLRB) has looked at employer’s equipment being used to assist with concerted communications. In 2007, the Board found that “employees have no statutory right to use their employer’s email system for non-business purposes as long as the restriction was not dis- criminatory.” The Register-Guard prohibited the use of email for all non-job related solicitations. The Board looked at Mid-Mountain Foods and other equipment cases. In 2001, Mid-Mountain Foods, Inc. refused to allow employees to use the television in the breakroom to show a pro-union video. It should be noted the company only allowed CNN to be broadcast. The Board found “no statutory right of an employee to use an employer’s equipment or media.”
In December, 2014 the Board reversed the Register-Guard decision in the Purple Communications’ case. The NLRB stated employee use of email is permissible for protected communications during working hours. Purple Communications, a company that provides telephone services for hearing impaired individuals, had a policy that limited email to business purposes only. Its policy included a ban on activities on behalf of organizations or persons with no professional or business affiliation with the company.
This case came to the NLRB’s attention when a union election was lost at Purple Communications. The Communications Workers of America (CWA) filed an unfair labor practice and objections to overturn the election claiming the policy negatively affected the election. Initially, Purple Communications won the case, citing validity based on the Register-Guard. After the appeal by CWA and the NLRB, the case was overturned.
The decision reads, “We adopt a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.” The outcome has an impact on most private sector employers who now need to review their policies and practices.
Employers should continue to restrict email use that violates other policies, such as confidentiality, harassment, and incivility. The decision only covers non-working time. Though non-working time may be difficult to monitor, employers should not allow concerted activity to disrupt work. Employers may apply “uniform and consistently enforced controls to the extent such controls are necessary to maintain production and discipline.”
Employers may continue to monitor computers and email for business purposes, such as productivity and compliance with policies of respect and confidentiality. Of course, employers cannot change their practice in response to union organizing activity. This is an opportunity to review related policies and practices to ensure a healthy, respectful workplace.
What employers should do:
- Ensure policies and practices are not interfering with protected, concerted activity.
- Policies to review are not limited to:
- Company Property
- Employee Monitoring
- Workplace Conduct
- Revise policies that are not enforced