The National Labor Relations Board (“NLRB”) is expected to issue a ruling shortly on whether employers can lawfully prohibit their employees and unions from using employer-owned e-mail and intranet systems to distribute union campaign materials. An NLRB decision favoring employee and union use of these internal communication avenues for union organizing and other NLRA-protected activities would effectively extend and be the NLRB’s “blessing” of its Acting General Counsel’s social media “rules” and guidelines discussed here and here.

The NLRB invited interested groups to file briefs in Roundy’s, Inc., 356 NLRB No. 27 (2010), concerning when employers can prevent non-employee union representatives from accessing and using an employer’s private property. This issue appeared to lack the need to merit such a rare invitation, however, because, in 1999, the NLRB had required a company that permitted an outside group to use its property to also grant comparable access to union organizers. Sandusky Mall Co., 329 NLRB 618 (1999).

The second sentence of the NLRB invitation, however, revealed its intent to apply its Roundy ruling beyond physical property rights. The briefs were to address, among other issues, “what bearing, if any, does Register Guard, 351 NLRB 1110, have on the Board’s standard for finding unlawful discrimination in non-employee access cases.” In Register Guard, the NLRB found that an employer may restrict employee use of its computer systems for union solicitation purposes, even though it allowed employees to use it for other personal, non-business purposes.

NLRB Acting General Counsel Lafe Solomon’s brief in response to this invitation explicitly asked the NLRB to apply Sandusky Mall to all forms of access cases and to hold that Register Guard “adopted an inappropriate analysis and should be overruled.” Mr. Solomon argued, much like he has in his social media policy quarterly reports, that electronic forums and communication systems are indistinguishable from face-to-face conversations for purposes of federal labor law. As such, Mr. Solomon believes that employees should be free to organize their fellow employees, as well as participate in other workplace conversations, through the employer’s e-mail system, Facebook, Twitter, etc. 

Some employers have elected to disregard or challenge the Acting General Counsel’s pronouncements on social media policy on the basis that Mr. Solomon cannot legally establish binding policy “for” the NLRB. But the NLRB’s decision in Roundy could signal its eventual position on Mr. Solomon’s social media guidelines and further convince employers that a successful challenge to those guidelines can come only from the federal courts rather than from the NLRB.