A union’s biggest challenge in an organizing campaign is communicating effectively with the employees it wants to organize. The National Labor Relations Board (NLRB), under the previous administration, strongly limited an employer’s ability to deny use of union organizers’ access to the company’s email systems. Recent decisions of the “new” membership of the NLRB have restored an employer’s right to control its email systems.
In Caesars Entertainment, the NLRB overturned a 2014 decision by a previous NLRB which, essentially, provided that if an employer allowed any non-business use of its email systems, it could not preclude pro-union employees, or potentially even outside union organizers, from accessing its email system to announce union meetings, or to spread pro-union organizing information to employees. In doing so, the NLRB held that employees do not have a right to use company email systems for organizing communications. A key part the Caesars’ decision, however, is that there must be other reasonable means for workers to contact one another.
The NLRB also left open the potential that its ruling would not apply where a union could prove that the employer’s limitation of access discriminated against employees’ rights to organize under federal law. Since that case did not involve the allegation that such discrimination existed, the NLRB did not finally decide nor lay out tests in that area. It is anticipated that the employer’s policies should prohibit email usage for purposes of soliciting membership or communicating about membership in any outside organization.
It would appear prudent at this point for employers to establish policies limiting access to its email or other electronic communication systems to business-related purposes only. However, the enforceability of such provisions may be limited by future events.