Under current National Labor Relations Board (NLRB) law, employees do not have a statutory right to use their employers’ email systems for union organizing or for other purposes. Email systems remain employer property for now, as the Board, in Purple Communications, Inc., 361 NLRB No. 43 (2014), declined the NLRB’s General Counsel’s invitation to overrule Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). But, in continuation of a troubling trend, the Board in Purple found yet another employer work rule—a “no disruption” rule—to be unlawful, resulting in an employer’s election victory being overturned and a new election being ordered.

Background

On November 28, 2012, elections were held at seven interpreter call centers for Purple, resulting in victories for the employer. Following the elections, the union filed objections to the outcome of the election and unfair labor practice charges against Purple. After a consolidated hearing on the unfair labor practices and election objections, on October 24, 2013, an NLRB administrative law judge (ALJ) ruled that Purple had committed unfair labor practices, sustained the election objections in part, and ordered that the employer’s election victory be set aside. On April 30, 2014, the NLRB issued a notice and invitation to file briefs, seeking input from the parties and amici on the Register Guard precedent involving company email systems.

Analysis

What was expected to be the Board’s reversal of position on employer property rights concerning employee use of email systems drew national attention. However, the Board, in its decision issued on September 24, 2014, decided to punt on the issue of whether the employer’s electronic communications policy, which prohibited employee use for non-business reasons, violated Section 8(a)(1) of the National Labor Relations Act. The Board decided to “sever and hold for further consideration the question whether Purple’s communications policy was unlawful.” For now, the Board’s precedent in Register Guard, finding that employers have a property right in their email systems and that employers may lawfully prohibit employees’ use of such systems for non-business reasons, remains controlling law.

Even though employers dodged a bullet with respect to their email systems, employers did not fare as well with the rest of the Board’s decision in Purple, as the Board continues to squeeze employers on the maintenance of allegedly “ambiguous” work rules. Over the past several years, the Board has, with increased frequency, found the maintenance of a variety of work rules and policies in nonunion workplaces to be unlawful, requiring employers to rescind rules and policies that in some cases have been in place for decades. In Purple, the Board once again found that an employer’s work rules violate Section 8(a)(1), resulting in the Board’s overturning of an election and ordering a new election.

More specifically, Purple maintained a rule prohibiting employees from “[c]ausing, creating or participating in a disruption of any kind during working hours on Company property.” As a general rule, an employer violates Section 8(a)(1) of the Act through the maintenance of a work rule if that rule would “reasonably tend to chill employees in the exercise of their Section 7 rights.”

The Board has developed a two-step inquiry to determine if a work rule would have such an effect. First, a rule is unlawful if it explicitly restricts Section 7 activities. If the rule does not explicitly restrict protected activities, it will violate the Act only upon a showing that: (i) employees would reasonably construe the language to prohibit Section 7 activity; (ii) the rule was promulgated in response to union activity; or (iii) the rule has been applied to restrict the exercise of Section 7 rights. In determining whether employees would reasonably construe language to prohibit protected activity, the Board is required to give the rule a reasonable reading, refrain from reading particular phrases in isolation, and not presume improper interference with employee rights.

Applying these standards, in Purple, the Board adopted the ALJ’s findings concerning the “no disruption” rule. The Board found that Purple’s no disruption rule would reasonably be interpreted by employees to prohibit participation in a protected strike, solicitation on nonworking time, or participation in meetings or other Section 7 activities “that take place during nonwork time and away from the workplace if those activities are causally linked to a disruption at the facility.” This finding coupled with a finding that the president and CEO of Purple made unlawful threats and promises to employees, led the Board to find that Purple violated Section 8(a)(1) of the Act. The Board ordered that Purple rescind the “no disruption” rule and set aside the company’s election victories and ordered rerun elections.

Key Takeaways

Electronic communications policies prohibiting employee use of company email systems for nonbusiness purposes remain lawful But, for how long? The Board will be revisiting the Register Guard issue, most likely after the mid-term elections in November. For now, employers must continue to review and evaluate their other work rules and policies to withstand NLRB scrutiny. In conducting this review, employers may want to remove general and ambiguous language or modify it to provide context and examples to avoid being construed as interfering with activities protected under the Act.