Use of Fire Department Email for Union Communications

Today’s burning question: Can my fire department prohibit me from sending a union related email to coworkers using the fire department’s email system?

Answer: If your fire department is in a state that tends to follow the National Labor Relations Board, probably not!

In a 3-2 ruling last week, the National Labor Relations Board ruled that employees who are allowed to use workplace email systems cannot be prohibited from using them during “nonworking time” to communicate with coworkers about “self-organization and other terms and conditions of employment”, absent “special circumstances that justify specific restrictions”.

The case, Purple Communications, Inc. and Communications Workers of America, AFL–CIO, Cases 21–CA– 095151, 21–RC–091531, and 21–RC–091584 (December 11, 2014), arose when a union seeking to organize employees at several Purple Communications facilities claimed that company’s email policy prevented coworkers from effectively communicating with each other for purposes of engaging in concerted activities.

The company’s policy prohibited “Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “Sending uninvited email of a personal nature.”

In reversing a seven-year old ruling, Register Guard, 351 NLRB 1110 (2007), the NLRB said employers cannot prohibit employees from using the company email system, explaining:

  • The workplace is “uniquely appropriate” and “the natural gathering place” for … [concerted activity] communications, and the use of email as a common form of workplace communication has expanded dramatically in recent years.
  • Consistent with the purposes and policies of the Act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.
  • We therefore overrule the Board’s divided 2007 decision in Register Guard to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes.
  • Our decision is carefully limited. In accordance with longstanding Board and Supreme Court precedent, it seeks to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers.
  • First, it applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access.
  • Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.
  • Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.
  • [W]e do not address email access by nonemployees, nor do we address any other type of electronic communications systems, as neither issue is raised in this case.

The NLRB’s ruling is binding on private sector employers and unions, but the applicability of the decision for firefighters and governmental employers will vary state to state based on whether a state’s labor board follows the NLRB’s reasoning.

Some of the key quotes that offer additional insights into the board’s reasoning:

  • There is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings.
  • [A]n April 2014 report found that “[e]mail remains the most pervasive form of communication in the business world” and predicted that work-related email traffic will continue to increase
  • It is often the fastest and least disruptive way to do a brief personal communication during the work day, and employees who are forbidden or discouraged from occasional personal use of e-mail may simply need to take more time out of the day to accomplish the same tasks by other means
  • In addition, the number and percentage of employees who telework is increasing dramatically, resulting in more employees who interact largely via technology rather than face to face.
  • Telework is expected to continue increasing rapidly, with predictions that 63 million employees will telework at least occasionally by 2016
  • The Board and the Supreme Court have recognized the workplace, and, when appropriate, a particular location in the workplace, as “the natural gathering place” for employees to communicate with each other. [The board went on to mention a cafeteria as a typical example of a place whether employees typically congregate, and pointed to other workplace issues such as the use of bulletin boards, pens and paper, and even telephones].
  • In many workplaces, email has effectively become a “natural gathering place,” pervasively used for employee-to employee conversations.
  • [E]mail has become such a significant conduit for employees’ communications with one another that it is effectively a new “natural gathering place” and a forum in which coworkers who “share common interests” will “seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.”
  • We emphasize, however, that an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction. The mere assertion of an interest that could theoretically support a restriction will not suffice.
  • The presumption that we apply is expressly limited to nonworking time. And, although we will presume that an employer that has granted such access for work purposes must allow access for Section 7 purposes as well, we permit the employer to rebut the presumption by showing that special circumstances make the presumption inappropriate in its workplace.
  • Further, we do not prevent an employer from establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.
  • We acknowledge that employers who choose to impose a working-time limitation will have concerns about the extent to which they may monitor employees’ email use to enforce that limitation.
  • Our decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability
  • The Board has long held that management officials may observe public union activity without violating the Act so long as those officials do not ‘do something out of the ordinary.’”
  • An employer’s monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.
  • Nor is an employer ordinarily prevented from notifying its employees, as many employers also do already, that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer’s email system.

Here is a copy of the ruling: NLRB Decision

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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