Reference no: EM132278364

Are These Employees’ Activities Legally Protected under the National Labor Relations Act?

Accurate Communications (AC) provides sign- language interpretation services. Its employees, known as video relay interpreters, provide two-way, real-time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters typically use an audio headset to communicate orally with the hearing partic- ipant on a call, leaving their hands free to communicate in sign language, via video, with the deaf participant. The interpreters work at 16 call centers that process calls on a nationwide, around-the-clock, “first come, first served” basis. Since June 2012, AC has maintained an employee handbook that contains its electronic communications policy. That policy states: INTERNET, INTRANET, VOICEMAIL, AND ELECTRONIC COMMUNICATION POLICY Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, I Phone, cellu- lar telephones and/or other Company equipment are provided and maintained by AC to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only. Prohibited activities Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities: 2. Engaging in activities on behalf of organizations or persons with no professional or business affil- iation with the Company. .... 5. Sending uninvited email of a personal nature. AC assigns its interpreters individual email accounts on its email system, and they use those accounts every day that they are at work. They are able to access their company email accounts on the computers at their workstations, as well as computers on the call centers’ break areas and on their personal computers and smartphones. The interpreters have access to the internet on the break-area computers but very limited access at their workstations. In the fall of 2012, the Union filed petitions to represent the interpreters that resulted in Board elec- tions at seven of the AC call centers. The Union asserted that the electronic communications policy interfered with the employees’ freedom of choice in the election. The Union argued that the Board should adopt a presumption that employees may access employer email or other communications systems to communi- cate about Section 7 matters if their employer generally allows them access to the system and uses it to communicate with them about wages, hours, or work- ing conditions. The Union would allow an employer to rebut the presumption by showing that it expressly lim- its use of the email system to specific and defined busi- ness purposes. The Union argued that previous Board decisions to recognize that the Board’s equipment cases, by hold- ing that employers could not preclude employee use for Section 7 reasons if they allowed other uses. The Union contends that the Board should take account of the fact that email communications is often less time consuming or disruptive to work of the recipient than face-to-face discussion, less likely to crowd out production-related matter than bulletin board postings, and less likely than other technologies to involve incremental usage costs. Employers’ controls over their communications system that have a clearly stated business purpose and are strictly enforced and nondiscriminatory would be permissible under the Union’s proposal. The Union argued that the availabil- ity of alternative means of communication among employees is not relevant to assessing the nature and strength of the employees’ (as opposed to nonemploy- ees’) Section 7 rights. AC encouraged the Board to rule that its elec- tronic communications policy was neither unlawful nor objectionable. AC maintains that Board prece- dents regarding the use of other types of equipment establish a strong property interest that outweighs employees’ interest in using their employer’s email to engage in Section 7 communications. Employees’ need for such has weakened because the availability of personal email accounts and smart phones has greatly expanded their ability to communicate with one another. AC disputes the various points that characterization of email as the “new water cooler.” AC describes various ways in which personal email use could interfere with employees’ work and undermine an employer’s solicitation and distribution policies. AC rejects limited restrictions and other measures as inadequate substitutes for a broad ban on personal use of email; those measures would not effectively address employers’ interests in maintaining production and discipline, protecting confidential information, preventing computer viruses, and ensur- ing that worktime is used for work. AC also raised potential practical considerations, including how it can exercise its right to keep non employees off its communications systems if employees contact them. Finally, AC downplayed the evidence noted that employees did, in fact, use its email system for non- work communications.

Questions ¦ Assess the potential of a favorable ruling for the Union

1. Does it matter that the email equipment is owned by the employee?

2. How should the NLRB rule? Why?