Impending NLRB Decision Expected to Pave the Way for Increased Union Activity on the Virtual Highway

By Marc J. Bloch and Elise C. Keating

The current National Labor Relations Board (NLRB) has been waiting for an appropriate case through which it can reverse the Bush-era decision in Register-Guard, which restricted the use of employer email systems for union activities. It appears that the NLRB may have found such a case in Roundy's Inc. Therefore, sometime before the November presidential election, the NLRB is expected to issue a decision in that matter. While the case arose out of non-employee union members distributing handbills on Roundy's property to its grocery store customers, we believe that the ruling has the potential to go beyond the distribution of paper bills to the use of employer email systems.

Labor lawyers are looking for the NLRB's decision in Roundy's to pick up where the earlier Clinton-era NLRB decision in the Sandusky Mall Co. action left off. The Sandusky Mall decision held that an employer violated The National Labor Relations Act (Act) when it barred union access to its property while allowing access to non-union groups. This situation is similar to the Roundy's matter because Roundy's allowed groups like the Girl Scouts and the Red Cross to conduct activities at its grocery stores, but it ejected the union when the latter handed out pamphlets urging a boycott of Roundy's store due to use of non-union labor and failure to pay the prevailing wage standard.

Though neither Roundy's nor Sandusky Mall deal with employer email systems, it appears that the NLRB will use the upcoming decision in Roundy's to expand the scope of "property" from the physical to the virtual. If the ruling comes down as anticipated, employers who, for example, allow the sale of Girl Scout cookies or publicize Red Cross blood drives through their email systems, must permit that same level of access to unions.

The Register-Guard decision made a distinction between union and non-union groups, stating that unlawful discrimination meant "unequal treatment of equals" when it came to access of the employer's email system. So, while employers could not permit one union access but not another, or allow access to only anti-union groups, they could freely permit access to non-union groups (like the aforementioned Red Cross and Girl Scouts) while denying that same access to unions.

Because there are no similar cases in the pipeline, we anticipate that the current NLRB will use Roundy's as the vehicle to reverse Register-Guard, despite the fact that the case does not deal with email communication. The effect of this decision would be an opening of access to employer intra-office e-mail systems for union activities.

Consequently, if your company's current policy is based on the Register-Guarddecision, restricting access to the employer's email system, it would be prudent to take a look at company email policy to determine if revisions will need to be made. An updated client alert will be issued when the Roundy's decision is published, along with advice on how employers should proceed in light of the decision. If you have any questions regarding the upcoming decision, please contact a member of Walter | Haverfield's Labor and Employment Law Group.