By Joshua M. Henderson.

Not to put it too indelicately, but has the NLRB made a fetish of the Section 7 right to engage in “concerted activities . . . for mutual aid or protection” — in the sense of rendering it excessive attention, even reverence?  One can easily conclude from its recent decisions that the Board views this Section 7 right as being of paramount value as compared with other values in our legal system, such as the enforceability of arbitration agreements and the confidentiality of workplace investigations, among others.  The Board has taken other efforts, sometimes controversial, to alert (particularly non-union) employees of their Section 7 rights.  This blog has previously mentioned the “strict scrutiny” that the Board is, in effect, applying to lockouts by employers.  That same standard, borrowed from constitutional adjudication, can also be seen in the Board’s obeisance to Section 7.  If a policy or law interferes with concerted activity (or could “reasonably” be construed as doing so), then its maintenance alone constitutes a Section 7 violation absent “special circumstances,” which are rarely (if ever) found.  The Board’s administrative review of alleged Section 7 violations gives currency to the old saying of constitutional adjudication that strict scrutiny is actually “strict in theory but fatal in fact.”

The Board likely will soon have an opportunity to decide another case in which Section 7 is pitted against other values, some of constitutional magnitude.  In Roundy’s Inc., the Board is expected to revisit the decision of Register Guard, 351 NLRB 1110 (2007), that an employer may prohibit employees from using its work e-mail system for non-work related purposes.  Even assuming a non-discriminatory application of such an e-mail policy, the Board is expected to overrule Register Guard and declare that blanket prohibitions on using work e-mail for personal reasons violates Section 7 because e-mail is such an effective tool for communicating with other employees about organizing and for engaging in other concerted activities.  Former Board Member Wilma Liebman developed this theory in her dissent in the Register Guard case.  Id. at 1121 (Liebman, M. dissenting) (“Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”) 

The Roundy’s case obviously raises substantial questions of labor law and employer property rights.  It remains to be seen how, or whether, the Board will deal with the First Amendment implications of a rule requiring employers to open its e-mail systems to facilitate speech.  For example, would such a decision be tantamount to unconstitutional “compelled speech?”  In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974), the Supreme Court found unconstitutional a State of Florida requirement that newspapers print a reply by any political candidate whose personal character or official record was attacked in the newspaper, because the reply would take up space “that could be devoted to other material the newspaper may have preferred to print.”  Is an employer’s e-mail system like a newspaper, a finite method of communication, such that commandeering it through a Board order would constitute compelled speech?  Or is there a different, lesser employer interest involved, such that it must give way to the employees’ interests in solicitation on an employer’s premises, much like the Supreme Court recognized in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802 n. 8 (1945)?

Although it won’t be the final word on the subject, the forthcoming Roundy’s decision should allow the Obama Board to put its indelible stamp on federal labor law.  It may very well represent the apex of the Board’s expansive view of Section 7 rights.