Friday, December 19, 2014

Who is protected by the recent NLRB decision on the use of faculty email?

  Aaron Nisenson, Senior Counsel for the AAUP,
  explained what the recent NLRB decision might
 mean for community college faculty.

        When the five-member National Labor Relations Board announced on Dec. 11 its ruling that significantly expanded the rights of employees to use their employer’s email system for union organizing and other activities, community college teachers were cautiously optimistic. Might the ruling mean we can similarly use faculty email at our public-sector institutions? The short answer is no, according to AAUP Senior Counsel Aaron Nisenson.

        The ruling expands the rights of private sector faculty members to use email for union organizing, explained Aaron Nisenson, AAUP Senior Counsel. In his longer answer, he cautioned community college teachers of all stripes to understand the rules vary widely state to state, and college to college.

        “Folks see a headline and they want to run with it,” said Nisenson. “How it works in each state in the public sector is different and that requires organizers to research the laws in their own states and at their own schools,” he added.

        Even so, he explained, the ruling may yet influence public-sector protocols. “The fact that the NLRB recognizes the appropriate way to communicate in the private sector should inform policy in the public sector, or at least we hope it will,” he said.

            The 2014 NLRB ruling in Purple Communications, Inc., overturns the NLRB’s 2007 ruling in the Register Guard case. The latter allowed companies to ban workers from using email for non-business-related  interactions, including union-related communications. While the new ruling is a major step forward, Nisenson enumerated its limitations:

         “First, since the decision was issued by the National Labor Relations Board, under the statute protecting private sector employees, it only applies to private sector employees. Second, the Board only addressed employee use of work email, and did not extend the protection to cover use by non-employees. Third, the protected use was limited to non-work time, and absent discrimination against the union it does not give the employees right to use the work email during work time. Fourth, the employer may in certain limited circumstances prohibit or limit the use of work email on non-work time. Finally, this ruling will likely be appealed and could be overturned by the Courts.” 

        Nevertheless, the decision recognizes the reality that email is one of the primary ways in which faculty speak to each other in the modern world, said Nisenson. “The ability to use email to communicate is essential to faculty, particularly contingent faculty, who are often dispersed and may not be able to speak directly to each other regularly,” he said.

        The five-member NLRB comprises five presidential appointees, who serve in terms that stagger. Most are labor-law professionals.

        Nisenson brings more than two decades of experience in nonprofit and labor and employment representation to the AAUP’s legal department, including extensive experience representing unions and individuals before the National Labor Relations Board, before state and local labor relations authorities, and in collective bargaining negotiations and arbitrations. Prior to joining the AAUP, Nisenson was the in-house general counsel for the International Union of Police Associations; an attorney with the law firm of Zwerdling, Paul, Leibig, Kahn, Thompson, and Wolly; and a partner at Henrichsen Siegel, PLLC. He has provided training in continuing legal education to attorneys on constitutional and employment law for the Bar Association of the District of Columbia, the AFL-CIO Lawyers’ Conference, and the International Union of Police Associations Lawyers’ Conference.

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