Late last year, the Board invited interested groups to file briefs in Roundy’s, Inc., 356 NLRB No. 27 (2010), a case involving what legal standard should be applied to determine whether an employer has violated the NLRA when it prevents non-employee union representatives to access to its property.  In Sanudsky Mall Co., 329 NLRB 618 (1999), the Board determined that if any outside groups were allowed to use employer property, regardless of the type of group, then union organizers could not be barred.  There actually has been no significant change in the law or real question about the law in this type of case since the Board set forth the standard.  So, while the Obama-board has had a pattern of requesting briefs from interested parties before issuing a precedent changing decision,  it was curious that they did so in this rather run-of-the mill case.

It, however, soon became clear what the Board was doing.  In 2007, the Bush-era NLRB issued its highly controversial decision in Register Guard, 351 NLRB 1110 (2007) – – finding that an employer could 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.  (Read our client alert on Register Guard).  Since for various reasons the Board could not overrule Register Guard directly (including that Member Becker appeared in the case, and therefore cannot rule on it directly again), the Board seems set to use a rather routine property case to overturn the standard to be used for e-mail situations.

In fact, the briefs filed with the Board leave no question that all sides believe that is what he Board is looking to do.  NLRB Acting General Counsel Lafe Solomon submitted a brief explicitly asking the Board to use the case to apply Sandusky Mall to all forms of access cases and to hold that Register Guard “adopted an inappropriate analysis and should be overruled.”  Meanwhile, management-side representatives have filed briefs supporting the broader Register Guard standard (and looking to have it expanded to traditional property cases as well). 

Given that almost every employer’s email system is used for some form of personnel business, overturning Register Guard will give union supporters broader access to companies’ e-mail and other electronic systems.

Typically, the Board has issued decisions on cases in which it has requested briefs within two months after the briefs are filed.  So, stay tuned.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.