David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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The National Labor Relations Board has never been an agency known for its ability to adapt quickly to changing times. So, it is perhaps no surprise that when the Board finally decided to address its regulation of e-mail and other electronic communications in its 2007 Register-Guard decision, it sounded like an agency still stuck in the New Deal era. The Board’s e-mail decision was a missed opportunity. Instead of adapting its regulations to the modern economy, the Board looked backward and made itself and the act it enforces even less relevant than they were before. Although a relatively new phenomenon, employee use of e-mail and other electronic communications for collective purposes implicated an issue that has existed since the early days of the National Labor Relations Act: the conflict between employers’ property rights and employees’ right to engage in collective action. The Board’s decision in Register-Guard is significant, as well as troubling, because it ignored long-established precedents in both labor and property law by elevating in virtually all instances employers’ personal property interests in their computer systems above employees’ NLRA rights. Moreover, in an aspect of Register-Guard that was less anticipated than the e-mail issue but ultimately more far-reaching, the Board modified its general approach to all communication policy cases - even those not involving e-mail - by implementing an extraordinarily narrow definition of unlawful “discrimination.” Register-Guard’s rulings on e-mail usage and discriminatory restrictions on workplace communications represent a sea change in how the Board regulates employees’ ability to discuss collective issues at work. Whether the case survives long enough for these rulings to make a lasting impact is unclear. What is more obvious, however, is that the Register-Guard Board further cemented its image as an agency mired in the past. A future Board that wishes to shed this persona must find a way to give electronic communications and unequal access rules the respect that they deserve under the NLRA.
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