Can Company Email Be Used for Union Activity?

Can a company commit an unfair labor practice by restricting use of its email to only business communications? That’s the question before the NLRB in the case of Purple Communications, Inc. and Communication Workers of America.

Purple Communications maintains a policy, which among other things, prohibits personal use of  its email system by employees. Many employers can certainly sympathize with this decision. Limiting email use to business purposes only greatly reduces the risk of viruses and spam, not to mention it tends to keep employees more focused on their work.

During the course of a union organizing campaign at two Purple Communications locations, the issue of whether employees could communicate via email about their employee issues arose. The union claimed that the email policy prohibiting any personal emails was overly broad and intrusive and claimed that it amounted to an unfair labor practice in that it unlawfully restrained employees’ concerted activities and campaigning.

It would seem that the NLRB could have disposed of this issue rather easily since it found for the employer in a case directly on point back in 2007. In the Register-Guard case, the Board specifically held that employees have no statutory right to use their employer’s email system. The hearing officer in the Purple Communications, Inc. case, in citing that 2007 decision, noted that he was bound by Board precedent on the matter.

What’s troubling to employers is that not only is the Board reviewing the matter, but also sought amicus briefs on the issue. The Board really seems to be taking a fresh look at this type of employment policy.  The NLRB General Counsel explains that email has become such a mainstream manner of communication so that the Board must review whether its prior decision on its personal use by employees is still appropriate. Unions are of course hopeful that this is a harbinger of a new time where employees can use their employers system to communicate about union matters without the threat of discipline for conducting personal business on work time. Employers see a decision for the union in this case to be tantamount to losing control of their ability to prevent union business on work time with the added insult of it being conducted on the employer’s email system.

A decision in the union’s favor will certainly require private employers to reexamine and possibly revise their acceptable use policies. Public employers in Illinois must take note of the decision when it issues as well. The public sector labor boards in Illinois very often look to the NLRB for guidance on issues. It may be easy to stay on top of this issue, though. Employees will email about it.