Oregon Law Review : Vol. 88, No. 1 (2009)

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    Oregon Law Review : Vol. 88 No. 1, p.195-254 : Employees on Guard: Employer Policies Restrict NLRA-Protected Concerted Activities on E-mail
    (University of Oregon Law School, 2009) O'Brien, Christine Neylon
    This Article explores the issues relating to policies that cover use of company equipment and systems, especially restrictions on e-mail, and how these policies may be legally problematic if they interfere with the National Labor Relations Act, which governs the right, among others, to engage in union activities. This Article focuses upon the significance of the NLRB’s Register-Guard I decision, the legal basis and sources cited by the majority in support of its decision, the arguments of the dissenting members, and the General Counsel’s recent applications of the majority’s discrimination standard in Register-Guard I. Why the Board’s decision in Register-Guard I was appealed and restricted is discussed, taking into account precedent under the NLRA and the current status and uses of e-mail.15 This Article questions the legality of workplace communication systems policies that permit non-business uses of communications systems yet also prohibit concerted activity and union-related communications among employees. The distinctions appear to be based upon disfavored content, involving protected concerted activity, rather than legally relevant distinctions that pertain to legitimate business reasons. The Article concludes that the NLRB needs to modernize its rules to embrace the realities of electronic communication and suggests a standard for balancing employees’ NLRA rights with employers’ legitimate business reasons relating to production, discipline, or other modern-day equivalents.