Universal Pictures/Courtesy Everett Collection
Employees don’t have an automatic right to use their work emails to discuss unions, collective bargaining and other workplace matters, a federal board decided this week — a decision that’s another chip away at worker protections, one board member insisted.
While employees have the right to organize unions or avoid union membership, the National Labor Relations Board said work emails aren’t a guaranteed forum for the topic.
The 3-1 decision revives a company’s right to restrict email use, reversing an Obama administration-era board position that said workers had the right to use work emails for the organizing activities protected under the National Labor Relations Act.
The majority — consisting of Trump administration appointees — said its decision fell in line with a long list of cases saying workers have no automatic right to use work copiers, televisions, bulletin boards, telephones and public address systems for union organizing and collective bargaining efforts.
In the era of smartphones and social media, workers have all sorts of ways off company time to get in contact about workplace issues, the majority noted. The board said it would protect worker abilities to use company emails for labor issues in the “rare” instances where company email was the only method for staffers to communicate with each other.
The decision comes as union membership continues to drop, though talk of organizing stirs in some high-profile sectors. Approximately 10.5% of all American workers last year were union members, according to numbers from the Bureau of Labor Statistics. That’s down from 20% union membership in 1983.
As the tech industry booms, companies like Amazon /zigman2/quotes/210331248/composite AMZN +0.91% and Google /zigman2/quotes/205453964/composite GOOG +1.86% have been accused of squelching union talk. This week, a former security engineer at Google /zigman2/quotes/202490156/composite GOOGL +1.82% said she was fired for organizing activity , joining four other workers who say they were fired for labor organizing efforts. They’ve all filed complaints with the National Labor Relations Board.
Google has said they were all fired for allegedly violating unrelated company policies on data security. Meanwhile, Amazon representatives have previously said its workers already have all the job benefits and incentives that unions seek.
The underlying case before the NLRB centered on Caesars Entertainment Corp.’s /zigman2/quotes/207192848/composite CZR +0.16% policy saying workers cannot use company computers to “send chain letters or other forms of non-business information.” The International Union of Painters and Allied Trades and other union representatives challenged the policy.
Ahead of Monday’s decision, business groups urged the board to re-apply a 2007 standard. The Bush-administration era board standard said companies can control how their equipment, including email systems, is used. The status quo 2014 standard gave too little weight to business concerns, they argued. Some added the current standard might even violate the First Amendment by “requiring employers to subsidize hostile speech.”
Various unions and worker advocates argued in friend-of-the-court filings that the board needed to keep the Obama-era position intact. Sen. Patty Murray, a Democrat from Washington, also submitted a filing in support of the 2014 standard.
Outgoing Obama administration appointee, Lauren McFerran, was the lone dissent in Monday’s decision. Emails are not like other office equipment, she said, especially at time when so many people don’t work together in one space.
The decision, she said, “aims to turn back the clock on the ability of employees to communicate with each other at work.”
The ruling added to the “long and growing list of decisions by the majority whittling down statutory protections for American workers who hope to organize a union or to improve their work lives,” she said in a parting shot. Her five-year term ended Monday.
David Rosenfeld, an Oakland, Calif.-based attorney representing the International Union of Painters and Allied Trades, District Council 16, Local 159, said he actually considered the ruling “a back-handed win.”
“I see it as the board stupidly creating a horrible mess for employers,” he said. The ruling held that companies could restrict emails to business purposes — but Rosenfeld said discussions about wages, work hours and job conditions certainly counted as relevant job talk.
Representatives for Caesars did not immediately respond to a request for comment.