Executive Summary: Perhaps overlooked due to the announcement by the National Labor Relations Board ("NLRB" or the "Board") of its revised procedures for union elections, the NLRB issued a decision on December 11 that will have a far-reaching impact on employers' e-mail systems.
In Purple Communications, Inc., 361 NLRB No. 126 (2014), the NLRB overturnedRegister Guard, 351 NLRB 1110 (2007), enf'd in part, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard the Board had held that employees have no statutory right to use their employers' e-mail system for Section 7 purposes. Section 7 of the National Labor Relations Act ("NLRA" or the "Act") gives employees the right to form, join or assist unions and to engage in other concerted activities for mutual aid and protection. Section 7 protects activities on behalf of a group of employees that could include criticism of a company's policies and procedures or its management , or other terms and conditions of employment, such as advocating for $15 per hour.
In a sharply divided 3-2 decision, the majority held that Register Guard improperly elevated property rights of employers over employees' rights. The Board determined that emails in the workplace are a means for employees to effectively communicate with each other at work about union organization and other terms and conditions of employment.
The case arose in the aftermath of a union campaign. The Communication Workers of America ("CWA") lost a union election and filed election objections and an unfair labor practice charge challenging the company's electronic communications policy. The policy stated in part that the company's computer and email system should be used for business purposes only. It also stated:
Employees are strictly prohibited from using the computer, internet, voicemail and email system, and other Company equipment in connection with any of the following activities:
2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
5. Sending uninvited email of a personal nature.
No employee had been disciplined under the policy. The basis of the CWA‘s challenge was that the policy was unlawful on its face. Relying on Register Guard, the administrative law judge ("ALJ") ruled in favor of the company on this issue.
Overruling the ALJ, the Board majority held: "we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems."
The Board stated that its decision was "carefully limited." "First, it applies only to employees who have already been granted access to the employer's email system in the course of their work and does not require employers to provide such access. Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline." The decision did not address email access by nonemployees or any type of electronic communications systems other than email.
The two Republican members wrote dissents covering 43 pages, stating why they consider the decision ill-considered, unworkable and unlawful. Member Miscimarra argued that limiting use of an employer's email system is not an unreasonable impediment to employees' exercise of rights under the NLRA. He stated that given the nature and use of email systems in most workplaces it will make it very difficult, if not impossible, "to determine whether or what communications violate lawful restrictions against solicitation during working time." Member Johnson warned that it is "extremely naive to believe that substantial amounts of work time, in the aggregate, will not now be spent on these communications – on a basis that is essentially unmonitorable by the employer." Johnson also raised a First Amendment argument that "the Board now requires an employer to pay for its employees to freely insult its business practices, services, products, management, and other employees on its own email. All this is now a matter of presumptive right, as long as there is some marginal tie-in of the communications to group terms and conditions of employment."
The majority opinion in Purple Communications raises many issues and provides insufficient guidance for employers.
- The Board stated that "it will be a rare case where special circumstances justify a total ban on nonwork email use by employees." No examples of what could meet that high hurdle were provided.
- The decision permits employers to provide uniformly and consistently enforced controls over its email system "to the extent such controls are necessary to maintain production and discipline." Again, the Board provided no guidance clarifying the issue.
- Employees now are permitted to use an employer's email system on "nonworking" time. That would include before and after hours, during breaks and at lunch time. Many employers have multiple shifts and different locations across time zones. It is likely that such emails will be at least be opened if not responded to during the receiving employees' working time. If an employee responds to an email without stopping work, how will the Board view discipline of such employee?
- Employers have the right to monitor emails on their computer systems. However, the NLRA prohibits unlawful surveillance of Section 7 protected concerted activities. In lawfully monitoring emails, employers must ensure they do not specifically target union or other employee protected activity.
- It is unclear what effect the decision will have on employers' non-solicitation and non-distribution policies. The Board said: "We do not find it appropriate to treat email communication as either solicitation or distribution per se." Instead, it will depend on "content and context." There inevitably will be line drawing, and employees may be coached by unions or lawyers regarding what to say in emails to avoid violation of a policy.
Employers' Bottom Line: This decision, along with the new election procedures, will make it more difficult for an employer to defeat a union organizing campaign. The decision likely will result in unfair labor practice charge litigation for years as the parameters of this new right are fleshed out. It is likely that the decision will be appealed to a federal court of appeals and perhaps to the Supreme Court. In the meantime, employers should review their email, social media and electronic communications policies. Employers with a policy limiting use of emails to only business should review the policy based on this decision. If employees are provided access to emails at work, prohibiting employees' use of emails during a union campaign will be an unfair labor practice, likely resulting in a favorable election outcome being overturned.