By PATRICIA COHEN -- DEC. 11, 2014

In a decision that could affect millions of workers across the country, the National Labor Relations Board ruled on Thursday that employers could not prohibit employees from using their company’s email to communicate and engage in union organizing on their own time.

The 3-to-2 ruling overturned a decision made in 2007, when Republicans held a majority on the board, that had forbidden such use of email.

Calling that ruling “clearly incorrect,” the current majority noted how technology had transformed daily habits. “The workplace is ‘uniquely appropriate’ and ‘the natural gathering place’ for such communications,” the board wrote, “and the use of email as a common form of workplace communication has expanded dramatically in recent years.”

The board did carve out an exception, saying that in special circumstances, employers might be able to create an overall ban on nonwork use of email if they could show it was necessary for productivity or discipline. The board said that as long as workers were allowed to send non-work-related emails, then employers could not bar the messages from being about union organizing.

John B. Langel, a lawyer at the firm Ballard Spahr, said the major problem with the decision is that it is impossible for an employer to monitor whether people are opening, reading and forwarding the emails when they are supposed to be working.

The case was brought in 2012 by the Communications Workers of America, which tried to unionize workers at Purple Communications, a California company that provides services for the deaf and hard of hearing. Organizing efforts failed, the union complained, because of the company’s email restrictions, which it said violated the National Labor Relations Act.

The case pitted employers’ property rights against workers’ freedom to communicate and organize. The 2007 ruling on email prohibitions, which involved The Register-Guard, a newspaper in Eugene, Ore., incorrectly erred on the side of the employer, the board wrote, and slighted “the importance of email as a means of workplace communication” and “failed to adequately protect employees’ rights.”

The majority in the ruling on Thursday wrote: “Empirical evidence demonstrates that email has become such a significant conduit for employees’ communications with one another that it is effectively a new ‘natural gathering place.’ ”

Union leaders applauded the decision. Calling it a “common-sense ruling,” Matt Ginsberg, associate general counsel of the A.F.L.-C.I.O., said: “The decision does not break new ground but instead simply applies well-established law regarding the right of employees to discuss working conditions during breaks and other nonworking time to the modern context of email communication.”

Matt Ginsberg Credit Joe Kekeris/AFL-CIO
James Brudney, a professor at Fordham Law School, said that while he did not have empirical evidence, the 2007 ruling certainly discouraged union organizing, adding that “communication via email is a key aspect of how people share ideas.”

Critics disagreed. John B. Langel, a lawyer at the firm Ballard Spahr who frequently represents management, said the major problem with the decision is that it is impossible for an employer to monitor whether people are opening, reading and forwarding the emails when they are supposed to be working.

The board would never have permitted someone “to go on the intercom while everyone else was working to speak publicly about what they should be doing about the union,” Mr. Langel said. But that is essentially what email entitles a worker to do, he said. “How are you assuring in this process that everyone is going to be on nonwork time?” he asked. “You can’t.”

Harry I. Johnson III, a board member, made this point in his dissent, saying: “email and face-to-face communications are inherently different,” because “such face-to-face ‘water cooler’ or ‘break room’ communications are limited by space and time.”

Philip A. Miscimarra, the other dissenting board member, disagreed that prohibiting workers from using their employers’ email significantly handicapped organizing efforts given the prevalence of alternatives. “National uprisings have resulted from the use of social media sites like Facebook and Twitter, for example, even when governments have used force to prevent such activities,” he wrote.

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