Register-Guard Oral Argument

The NLRB held its oral argument today in the Register-Guard case, in which it is looking generally at the NLRA's regulation of employees' e-mail communications about union and other protected matters.  The extremely rare argument, which I attended, gave a bit of a window into some of the members' views.  I won't go into the details, as BNA and others will do a much better job, but my general impression is that the Board will have several different opinions (which isn't exactly going out on a limb).

Member Liebman was an active questioner and her primary focus seemed to be an interest in applying the existing Republic Aviation framework to Internet communications.  Member Walsh seemed sympathetic to that view, although he was less clear.  Member Shaumber had more varied questions, but if I had to predict based on his questions and past opinions, I'd say that he would apply a more restrictive approach similar to the one that several circuits have used for equipment like telephones and bulletin boards.  Chairman Battista asked too few questions to guess about his thinking.

Member Kirsanow is the most interesting question mark, as he is the most likely to take an O'Connor/Kennedy role in this case.  His questions were thoughtful and a major theme was a concern for employers' property and business interests, suggesting something along the lines of the equipment approach.  However, I wouldn't be surprised if he tracks more of a middle course.

Take anything that even sounds like a prediction with a grain of salt, as I'm notoriously bad at predicting the lineup of cases.  Not to be daunted by that fact, however, I'll also predict that the Board takes small steps in this case.  Several parties urged the Board to move cautiously, and I saw few indications from the members that they had an appetite to create significant new rules or to dramatically reevaluate its old ones.  As I argue in a recent article (I can't resist a little self-promotion), I think this is unfortunate because the Board's traditional approach to employee communications is in serious need of revamping.  Moreover, the Internet is such a unique and important communications tool that, even if the old rules remain, it deserves special protection.   Chances are though that the Board doesn't particularly care what I think and tries to pigeon-hole Internet communications into its current rules.

-JH