In its long-awaited Purple Communications decision, on September 24, 2014, the NLRB reserved judgment on the most anticipated issue in the case: the legality of the employer’s electronic communications policy prohibiting use of e-mail for any nonbusiness reason, and the continuing validity of the NLRB’s 2007 Register Guard decision.  The Board had previously invited briefing from both the parties and amicus regarding whether to overrule or modify Register Guard, and it was anticipated the Board would address that issue in the Purple Communications decision.  

Instead, the Board chose to decide other aspects of the Purple Communications litigation, and severed the e-mail policy issue from the case, retaining it for further consideration.  The Board focused on the employer’s “no disruptions” work rule, as well as statements made by the employer’s president and CEO in the run-up to a union election, and found that the employer violated Section 8(a)(1) of the Act in both instances. 

The employer’s “no disruptions” rule prohibited employees from “[c]ausing, creating or participating in a disruption of any kind during working hours on Company property.”  As a result of the maintenance of the “no disruptions” policy and the CEO’s comments, an administrative law judge (“ALJ”) overturned the results of one out of two elections at separate locations.  The judge did not believe the rule or the comments affected the results of one of the votes, given the voter spread.  The NLRB reversed and found that both elections should have been overturned due to the unlawful comments and “no disruptions” rule. 

With respect to the alleged unlawful comments, the NLRB found the following comments interfered with employees’ free choice and warranted setting aside the election: 

  • Promising to lower performance standards that had recently been raised and were a focus of the union campaign;
  • Statements focusing on the cost of the union campaign and the implication that the money could have been spent on salaries or bonuses instead

With respect to the “no disruptions” rule, the NLRB found it was overbroad and would dissuade employees from engaging in protected conduct.  The NLRB agreed with the ALJ that “disruption” could encompass activities protected by Section 7 of the NLRA (such as strikes and solicitations), and that the employer’s policy did not clarify that it was not intended to prohibit such activities.  The NLRB also faulted the use of the phrase “working hours” as being overbroad and inclusive of meal and break periods, which occur during “working hours.”  The NLRB rejected the employer’s argument that strikes during “working hours” wouldper se not be protected, noting that a strike where employees walk off the job – which by its nature occurs during “working hours” – is protected.

The decision underscores the risks of maintaining overly-broad work rules that can be interpreted to restrict activities protected by Section 7 of the NLRA.  While the typical NLRB remedy orders the employer to rescind the offending rules and post a remedial notice, in election cases unlawful handbook rules can result in a second election.  This is true whether or not there is evidence that the overbroad rule was actually enforced – “mere maintenance” of an unlawful rule is enough under Board precedent to overturn election results.