In an amicus brief filed earlier this week, the Retail Litigation Center (RLC) urged the National Labor Relations Board (NLRB) to uphold existing precedent precluding employees from using employers' email systems, for union organizing and representation purposes. The RLC brief argues against classifying email as face-to-face communication outlining the operational and constitutional challenges engendered by the novel classification.
The case, Purple Communications, Inc. v Communications Workers of America, AFL-CIO, questions whether employees have a statutory right to utilize employers' electronic communications systems for union purposes. Existing precedent categorizes employers' email and other electronic communication systems along with copiers, bulletin boards, public address systems and telephone networks as off-limits. Instead, the NLRB theory would re-classify email communications under the standards governing oral solicitations.
"Thankfully, communication in workplaces today does not reflect the NLRB's cynical view of it," said Deborah White, RLC President. "Email has not supplanted human interaction, as the NLRB suggests, it has enhanced it, in just the same way as newsletters and pin boards do. The NLRB should respect the established, straight-line precedent and consider the immense operational challenges associated with this curious theory."
The RLC brief highlights how the differences in the use of email and face-to-face communications across individual industries, coupled with the novel NLRB classification, could lead to negative consequences for employers and employees. Employers would be expected to bear the costs of clogged email systems, required increased cybersecurity and lost employee productivity. There is no need to require employers to bear these burdens as there are ample opportunities for employees to engage in face-to-face communications and the exponential growth in the accessibility of non-work electronic media and employees' options for confidential use provide better options for employees' Section 7 activities.
From the brief:
"Despite technological advances, human interaction not only still exists in the workplace, but is central to the proper functioning and success of most businesses, particularly in the retail industry."
"The advent and growth of social networking, smartphones, text messaging, and personal e-mail have combined to provide employees with abundant opportunities to engage in easy and inexpensive personal communications…. Unions were quick to employ these efficient means of communicating with and organizing workers, as they were early adopters of many of these technologies."
"Not only are personal means of electronic communication more widely available than those in the workplace—this is especially true in the retail industry, where very few covered employees have work email addresses or computer access in the workplace—but they also give employees a greater sense of privacy."
The brief, which can be read in full here, was drafted by Gibson, Dunn & Crutcher LLP attorneys Jason C. Schwartz and Alexander K. Cox.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.