NLRB Overrules Register-Guard and Finds Many Employees Have Presumptive Right to Use Employer’s Email System

As expected, the NLRB last week overruled its December 2007 decision in Register-Guard which had given more weight to an employer’s private property rights to manage its own email system than to employees’ need to communicate among themselves.   In Purple  Communications, Inc., 361 NLRB No. 126 (2014), another divided Board addressed this issue (which it bypassed in September) and held “that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”  (emphasis added).   Although this decision will apply to union and non-union employers, it does not create an unrestricted right.   Employers are not required to provide email access to employees who do not already have access to the employer’s email system in the course of their work.   In addition, employers may still under “special circumstances” ban total nonworking use of email, “including section 7 use on nonworking time,” in order “to maintain production or discipline.”  Moreover, employers “may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”  This would include, for instance, banning large attachments and permitting employer monitoring of email usage.   Finally, nonemployees do not “have rights to access an employer’s email system.” Interestingly, the Board reserved for another time the rights of employees to utilize “other type[s] of electronic communications systems.”  Importantly for all employers, this decision will require another revision to common workplace email policies.

The NLRB has previously taken the position that email communication among employees (or with union organizers) can constitute protected “concerted activity.”  Employees had a statutory right under Section 7 of the NLRA to engage in concerted activities, which means that employers could not prohibit it or discipline an employee for engaging in such conduct.   However, in 2007, the NLRB narrowed an employee’s right to use an employer’s email system for union and other section 7 activities. The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB 1110 (12/16/07). The NLRB’s majority concluded that that a newspaper publisher employer did not violate §8(a)(1) of the National Labor Relations Act by maintaining a broad policy which prohibited employees from using its e-mail system for any “non-job-related solicitations.”  The Board analogized email to other employer equipment, such as telephones.   The Court of Appeals for the District of Columbia later narrowed the ruling when it held in 2009 that the employer still could not discriminate against union solicitation by permitting other personal non-work related solicitation emails, but disciplined the union president for sending union-related solicitation emails.   It was anticipated that the current NLRB would revisit and – to be consistent with the General Counsel’s views on other social media -- reverse the Register-Guard decision.  However, in September it ignored the issue in Purple Communications, Inc., 361 NLRB No. 43 (2014), even though the NLRB General Counsel invited the Board to overrule Register-Guard.  Nonetheless, last week, the NLRB revisited the issue and, as expected, ultimately overruled Register Guard.

According to the Board’s decision, the employer maintained a lawful “electronic communications policy limiting employee use of its email and other electronic systems [including computers, voice mail, cell phones and other equipment] to “business purposes only” and “specifically prohibit[ing]” certain uses by employees,”   including:  

2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company. 

. . . .

5. Sending uninvited email of a personal nature.

Although there was no allegation that the employer had unlawfully enforced this policy against any employees, the NLRB’s General Counsel invited the Board to overrule Register-Guard in order to make this lawful policy unlawful.  The Board then invited amicus briefs from the employer and union communities on the issue, reversed Register-Guard, applied the decision retroactively and remanded the case for a determination whether the employer could rebut the new lawful presumption.   As the Board noted, the employer at worse would only be required to rescind its policy and so notify employees; it would not be subject to back pay liability or reinstatement obligations. 

After briefing, the Board adopted “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 Board rejected the argument   

that social media, texting, and personal email accounts constitute adequate alternative means for employee communications. Even if we agreed that alternative means were germane to the analysis here—which, as discussed below, we do not— the Respondent and amici here have not shown that our presumption would impinge more than minimally upon employers’ property rights, and therefore there is no need to go any further in accommodating them. In any event, we would not agree that such personal communication options are adequate, in light of the high value our precedents place on communication in the workplace.

As for the “special circumstances” which could justify limits on employee use of email, the employer bears the burden of articulating “the interest at issue” and showing “how that interest supports the email use restrictions it has implemented.” 

Because limitations on employee communication should be no more restrictive than necessary to protect the employer’s interests, we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees. In more typical cases, where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.

By way of example, the Board observed that “[a]n employer’s interests in protecting its email system . . .  from damage or from overloads due to excessive use, would of course be relevant” to showing “special circumstances.”   The argument would be strengthened if the employer could show that “it adopted the restriction in order to protect the interests it asserts, instead of just citing certain interests, post hoc, to support a restriction that was not actually based on them.”   Moreover, an employer’s interests generally “will establish special circumstances only to the extent that those interests are not similarly affected by employee email use that the employer has authorized.”  However, it rejected “[t]he prior existence of an employer prohibition on employees’ use of email for nonwork purposes.”   

As for permitted restrictions on employee use of email, the Board noted that an employer could establish “uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/ video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”   

employers who choose to impose a working-time limitation will have concerns about the extent to which they may monitor employees’ email use to enforce that limitation. Our decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.

Of course, employer surveillance of employee’s section 7 activities can violate the NLRA, but the Board responded that it would address such “surveillance allegations by the same standards that we apply to alleged surveillance in the bricks-and-mortar world.”

 

“those who choose openly to engage in union activities at or near the employer’s premises cannot be heard to complain when management observes them. The Board has long held that management officials may observe public union activity without violating the Act so long as those officials do not ‘do something out of the ordinary.’” An employer’s monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists. Nor is an employer ordinarily prevented from notifying its  employees, as many employers also do already, that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that  employees may have no expectation of privacy in their use of the employer’s email system.

Apparently oblivious to a standard liability problem facing many employers from personal use of an employer’s email address – where the recipient – who may not be a co-worker -- does not always know the sender’s rank in the organization, the Board rejected concerns about the employers’ First Amendment and other rights:

We are simply unpersuaded that an email message, sent using the employer’s email system but not from the employer, could reasonably be perceived as speech by, or speech endorsed by, the employer—  particularly a message reflecting a view different from the employer’s. Email users typically understand that an email message conveys the views of the sender, not those of the email account provider. They would no more think that an email message sent from a coworker via a work email account speaks for the employer (unless the message was sent by the employer’s supervisor or agent) than they would think that a message they receive from a friend on their personal Gmail account speaks for Google.

There were two lengthy dissents.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Was Busy at End of 2012

In the last quarter of 2012, the NLRB issued several significant decisions which will affect both union and non-union employers in the future.  Three decisions in particular are worth noting.  In one, a non-union, non-profit employer was found to have violated the NLRA for discharging five employees for critical statements made on Facebook about a co-worker in violation of the employer’s zero-tolerance anti-bullying policy.  In another, the Board concluded that an employer is no longer always entitled to withhold from a union witness statements gathered during a workplace investigation that leads to the termination of an employee.  Finally, the Board held that employers with a newly certified union that have not yet reached a collective bargaining agreement generally may not unilaterally demote, suspend or discharge employees without first bargaining with the union.

Non-Union Employer Terminating Employees For Criticizing Co-Worker on Facebook.  In Hispanics United of Buffalo, the non-profit, non-union employer terminated five employees under the agency’s EEO non-retaliation/anti-harassment policy for criticizing a co-worker who was critical of their client service.   One of the terminated employees knew that the co-worker intended to express her concerns to the Executive Director and, while home on Saturday, asked her Facebook co-worker friends what they thought of this criticism.  Five off-duty employees responded by objecting to any criticism of their own performance.  The criticized co-worker also responded about the “lies” and reported to the Executive Director the following Monday that the Facebook postings had upset her enough to give her a heart attack.  Following an investigation – which included reviewing copies of the postings – five of the six employees involved were terminated under the agency’s “zero tolerance” for bullying and harassment under the EEO policy.  (The Director’s secretary was not discharged even though she also participated).   The Board’s majority found the Facebook criticisms of the co-worker constituted protected concerted activity and could not be the basis of disciplinary action.   The Board rejected the employer’s argument that the Facebook criticisms constituted bullying and harassment: “legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity.”

Confidentiality of Written Witness Statements Collected During Workplace Investigations.  Since 1978, the NLRB has ruled that employers do not need to provide to a union witness statements gathered during a workplace investigation of employee misconduct (because the NLRB does not itself provide copies of witness statements prior to hearings).  However, on December 15, 2012, the NLRB overruled that decision in American Baptist Homes of the West d/b/a Piedmont Gardens.  The issues in American Baptist Homes concerned whether the employer “violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to provide the Union with the names, job titles, and/or written statements of three individuals who claimed that they witnessed” a nurse sleeping on duty that resulted in the nurse’s termination.  Two of the nurse witnesses submitted their written statements to HR with assurances of confidentiality, but the third nurse slipped her statement under the HR door with only the assumption of confidentiality without being asked for a statement or promised confidentiality.  The NLRB concluded that the employer “violated the Act by failing to provide the witnesses’ names and job titles.”  As for two the witness statements, the Board decided to overrule prior precedent, but to not apply retroactively it to employer in American Baptist Homes.  Nonetheless, because the third statement had been submitted spontaneously without any assurance of confidentiality, the employer was required to produce it to the union.

 Under the Board’s new test, “if the requested information is determined to be relevant, the party asserting the confidentiality defense has the burden of proving that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.” An employer “asserting the confidentiality defense may not simply refuse to furnish the requested information, but must raise its confidentiality concerns in a timely manner and seek an accommodation from the” union.  The Board majority rejected the dissent’s concern about the impact this would have on workplace investigations, particularly sexual harassment investigations governed by EEOC guidelines:  

The Detroit Edison balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, which would include concerns about witness intimidation or compliance with EEOC guidelines. Where such concerns exist, the employer will not be required to provide the information, but will merely need to seek an accommodation from the union. It follows, then, that the Detroit Edison test encourages parties to a collective bargaining agreement to work together to accommodate their competing interests.

Duty to Bargain with Union Imposed on Employee Disciplinary Decisions.  In Alan Ritchey, Inc., the Board held for the first time that an employer which has not yet adopted a collective bargaining agreement with a union must first bargain with the union before imposing discretionary disciplinary actions on any employees in the bargaining unit.    The disciplinary actions at issue involved discretionary progressive disciplinary action for absenteeism, insubordination and threatening behavior.   Imposing disciplinary action was found to be a prohibited material unilateral change in the terms and conditions of employment. “[T]he employer has both a duty to maintain an existing policy governing terms and conditions of employment and a duty to bargain over discretionary applications of that policy.”

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate,  . . .  because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

The Board rejected concerns with the delay from a duty to bargain before imposing disciplinary action because the pre-imposition bargaining was only required for suspensions, demotions and discharges.  Moreover, “where the preimposition duty to bargain exists, the employer’s obligation is simply to provide the union with notice and an opportunity to bargain before discipline is imposed.  . . .  the employer is not required to bargain to agreement or impasse at this stage; rather, if the parties have not reached agreement, the duty to bargain continues after imposition.”  (emphasis added).  In addition, an employer could still act unilaterally where it “has a reasonable, good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel,” such as where “an employee has engaged in unlawful conduct, poses a significant risk of exposing the employer to legal liability for his conduct, or threatens safety, health, or security in or outside the workplace.” “Finally, an employer need not await an overall impasse in bargaining before imposing discipline, so long as it exercises its discretion within existing standards.”

Nonetheless, because this was a new Board policy, it decided to not apply the ruling retroactively to the employer, but to only apply it to disciplinary actions taken in the future.

Other Recent Board Decisions.  The Board also publicized its actions in a few other cases. In Latino Express , the Board decided to require employer to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum and to require employers paying back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. In Chicago Mathematics & Science Academy, the Board concluded that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. In United Nurses & Allied Professionals (Kent Hospital) – The Board, addressed “several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision” and concluded that “ lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment.”  Finally, in WKYC-TV, Gannet Co. “the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Invalidates Employer’s Courtesy Rule as Violating Employee Right to Be Disrespectful, But Upholds Termination for Mocking Customer Test Drive

On Friday, a divided NLRB (i.e., 2 Democrats vs. 1 Republican) affirmed an Administrative Law Judge decision that an automobile dealership violated its employee's rights by utilizing an employee handbook which required employees to behave courteously. Karl Knauz Motors, Inc.,
Case 13–CA–046452. The NLRB unanimously, however, affirmed the ALJ finding that the employer lawfully terminated the employee for mocking a customer test driving accident on his Facebook page because he was not engaging in any concerted activity arguably related to the terms and conditions of his employment or on behalf of co-workers.   Interestingly, in light of the lawful termination grounds, the NLRB refused to address the employee's argument that he was actually terminated for a different Facebook post where he mocked the employer's cheap refreshments for customers of its expensive cars. In contrast to mocking the poor driving skills of a customer's child (and the sales rep apparently sitting in the passenger seat), mocking the employer's cheap refreshments was arguably related to the lower sales commissions the employee anticipated would flow from the minimal investment in food. The employer did not object to the ALJ's finding that the handbook also violated the NLRA with its provisions on "unauthorized interviews" and "outside inquiries concerning employees" and had rescinded those rules (as well as the Courtesy rule) before the evidentiary hearing. The NRLB General Counsel also did not object to ALJ's approval of the employee handbook's "Bad Attitude" rule.  

The NLRB's discussion may be enlightening for employers:

The judge found that the Respondent, which owned and operated a BMW dealership, violated Section 8(a)(1) of the Act by maintaining a rule in its employee handbook stating:

(b) Courtesy: 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 or reputation of the Dealership.

For the following reasons, we agree with the judge's finding.

An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. . . . If it does not, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Id. at 647. (citations omitted).

We find the "Courtesy" rule unlawful because employees would reasonably construe its broad prohibition against "disrespectful" conduct and "language which injures the image or reputation of the Dealership" as encompassing Section 7 activity, such as employees' protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them. First, there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule's broad reach. See generally Costco Wholesale Corp., 358 NLRB No. 106 (2012) (finding unlawful the maintenance of a rule prohibiting statements posted electronically that "damage the Company . . . or damage any person's reputation"). Second, an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as "disrespectful" or "injur[ious] [to] the image or reputation of the Dealership." Cf. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (in evaluating employer statements alleged to violate Sec. 8(a)(1), "assessment of the precise scope of employer expression . . . must be made in the context of its labor relations setting" and "must take into account the economic dependence of the employees on their employers"). As we recently observed:

Board law is settled that ambiguous employer rules – rules that reasonably could be read to have a coercive meaning – are construed against the employer. This principle follows from the Act's goal of preventing employees from being chilled in the exercise of their Section 7 rights[,] whether or not that is the intent of the employer . . . .

Flex Frac Logistics, LLC, 358 NLRB No. 127, slip op. at 2 (2012).

. . . .

In other words, compliance with the first sentence of the rule is no assurance against sanctions under the second sentence of the rule. Reasonable employees would believe that even "courteous, polite, and friendly" expressions of disagreement with the Respondent's employment practices or terms and conditions of employment risk being deemed "disrespectful" or damaging to the Respondent's image or reputation. Thus, contrary to the dissent's contention, the second sentence of the rule proscribes not a manner of speaking, but the content of employee speech—content that would damage the Respondent's reputation. For example, here we find that the Respondent unlawfully coerced its employees by promulgating two other rules that restrict employees' ability to communicate about their terms and conditions of employment. Presumably, even if employees shared with third parties information about our findings of the Respondent's unlawful conduct in the most genteel manner, such sharing would be injurious to the Respondent's image or reputation. A reasonable employee, consequently, would believe that such a communication would expose him or her to sanctions under the Respondent's rule.

The dissent argued that the majority's interpretation of past precedent was unreasonable as applied to the facts of this case. In any event, the employer was ordered to rescind the "Courtesy" rule in its employee handbook "that prohibits employees from being disrespectful or using profanity or any other language which injures the image or reputation of the Dealership," notify the employees of the rescission and post a copy of the Appendix summarizing the NLRB requirements. It was not, however, required to reinstate the fired employee.

As mentioned, the ALJ did not find any problem with the employer's Bad Attitude rule, which the employer also rescinded before the hearing and which provided:

Bad Attitude: Employees should display a positive attitude toward their job. A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.

The ALJ found that "the one sentence prohibition would reasonably be read to protect the relationship between the Respondent dealer and its customers, rather than to restrict the employees' Section 7 rights. As was frequently mentioned during the hearing, BMW is a top of the line automobile with, I imagine, an appropriate sticker cost. A dealer in that situation, I believe, has the right to demand that its employees not display a bad attitude toward its customers."

In publicizing the decision, the NLRB explains:

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual's actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, "It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees' terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting." Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.