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NLRB Law Memo 01/13/2007
by Ross Runkel at LawMemo
NLRB Law Memo 01/13/2007
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NLRB seeks amicus briefs on employee use of employer's email system.
The Guard Publishing Co (Case 36-CA-8743-1)
Notice: http://www.nlrb.gov/shared_files/Press%20Releases/2006/R-2613.pdf
Briefs and other documents: http://www.nlrb.gov/nlrb/about/foia/FrequentlyRequestedDocuments.html
The NLRB is inviting amicus briefs (due February 9) in a case involving employee use of the employer's email system to communicate about union or other concerted, protected matters. The Board has scheduled a rare oral argument for March 27.
The Board is especially interested in answers to the following questions:
1. Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
3. If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
4. In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
5. Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?
6. How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
7. Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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