Crossed wires: outdated perceptions of electronic communications in the NLRB'S Purple Communications decision.

• Author: Kuntz, Harrison C.

INTRODUCTION

The National Labor Relations Board (the NLRB or the Board) has recently emphasized the need to adjust to the rapid pace of change in modern society. (1) The recognition of employees' right to use employer-owned email systems for protected activities in its December 2014 Purple Communications decision purported to establish a central pillar of this effort. (2) Purple Communications reversed the NLRB's 2007 Register Guard holding that employees do not have the right to use employer-owned electronic resources for protected activities. (3) However, the Board's rationale in Purple Communications reflected an understanding of electronic resources that was more suited to 2007 than to the lives of workers in late 2014. Consequently, an attempt to demonstrate adaptability resulted in a failure to respond to changed circumstances.

Part I of this Note describes the NLRB's role in protecting collective action in the workplace, as well as its responsibility to adapt its standards to changing social, economic, and technological circumstances. Part II explains that the tension between employees' collective action rights and employers' property rights represents one of the fundamental balancing acts the Board must perform as circumstances change. Next, Part III examines how the Board has performed that balancing act in the context of email, including its 2007 Register Guard and 2014 Purple Communications decisions. Part IV demonstrates that workers' utilizations of diverse electronic communications platforms grew significantly between 2007 and 2014. Part V argues that those changes should have factored into the Board's analysis in Purple Communications.

1. THE ROLE OF THE NLRB IN CHANGING CIRCUMSTANCES

   1. Interpretation and Enforcement of the National Labor Relations Act

      The National Labor Relations Act (the "Act") established the bedrock of national labor policy when President Franklin D. Roosevelt signed it into law on July 5, 1935. (4) Congress's primary goal when it enacted the Act was to encourage unionization and collective bargaining. (5) Sections 7 and 8 of the Act protect employees engaged in union activities from employer retaliation. (6) These two Sections also protect group actions by employees aimed at changing or protesting their terms and conditions of employment, even if no union organizing drive has been contemplated. (7)

      The Act vests responsibility for application and enforcement of its mandates with the NLRB. (8) The Board's jurisdiction extends to all private-sector employers affecting interstate commerce. (9) It performs a unique "quasi-judicial" (administrative and judicial) function to resolve unfair labor practice allegations. (10) A presidentially appointed" General Counsel investigates unfair labor practice charges filed by employees, labor organizations, and employers through its Regional Offices. (12) The General Counsel then assumes an advocacy role and issues a complaint if it is determined that a charge has merit. (13) Prosecution of the complaint initially occurs before an administrative law judge, whose decision is then reviewable by the five-member Board. (14) The federal courts of appeals have jurisdiction to review Board decisions. (15)

      The President appoints Board members with advice and consent from the Senate. (16) Traditionally, the President appoints three Board members from the President's political party and two members from the opposing party. (17) Board members typically vote in accordance with the labor or management preferences of their political party. (18) As a result, Board standards often oscillate between pro-labor and pro-management positions as the White House changes hands. (19)

   2. NLRB Responsiveness to Changing Circumstances

      The Board has unquestionably faced an evolving landscape over time. Passage of the Act was motivated by the unique circumstances of the Great Depression and the massive worker dislocation that it caused. (20) The statutory language reflects the unique nature of that tumultuous period in American history. (21) However, the social, economic, and technological circumstances of that time differ vastly from the dynamic characteristics of the modern economy. (22)

      Perhaps the most noteworthy change in recent decades from the perspectives of labor, management, and the Board alike has been the precipitous decline in union membership. Private sector union density peaked at an estimated 35% to 37% in the mid-1950s. (23) That figure declined to 20.1% by 1983, (24) and reached 6.9% in 2010. (25) The Bureau of Labor Statistics' most recent studies place the current figure at just 6.7%. (26)

      Many supporters of the labor movement believe that unfavorable NLRB standards, particularly during the George W. Bush administration, have been partially responsible for the decline of unionization. (27) A common narrative of such criticisms has developed, categorizing pro-management outcomes as evidence that the agency is "largely irrelevant to the contemporary workplace," (28) "ossified," (29) dead on arrival, (30) and, generally, obsolete. (31) Labor advocates, in sum, viewed the Bush Board as unresponsive to changing circumstances. (32) This criticism specifically targeted perceived unresponsiveness to the growth of technology in the workplace. (33)

      However, many observers have conflated adaptability to changing circumstances with political decision-making by the Board. (34) This difficulty is amplified by the Board's frequent reliance, throughout its history, on purportedly new circumstances to arrive at conclusions that many view as politically motivated. (35) Accordingly, acknowledgment of the need to adapt to changing circumstances has not been limited to Boards controlled by the Democratic Party. (36)

      Nonetheless, the Board under the Obama administration has robustly responded to adaptability criticisms, particularly those regarding its approach to technology. (37) The Board has held during the Obama administration that employers may not retaliate against employees for union and other protected activities that occur on social media platforms. (38) It issued changes to its Rules and Regulations for union representation elections that rely heavily on email and E-Filing, including a new requirement that employers provide employees' personal and work email addresses to any union that petitions to represent them. (39) The Board and General Counsel have also announced that electronic signatures are now acceptable for showings of interest in support of representation petitions. (40) The Board has even attempted to bolster its public outreach efforts through the launch of a mobile app. (41)

2. THE TENSION BETWEEN PROPERTY RIGHTS AND SECTION 7

   While the debate over utilization of employer-owned electronic systems and devices for protected activities presents novel issues, the underlying tension between employees' Section 7 rights and employers' property rights is as old as the Act itself. (42) The Supreme Court has commented that the balance of employers' property interests and employees' Section 7 rights "must be obtained with as little destruction of one as is consistent with the maintenance of the other." (43) Questions of how, when, and where employees must be permitted to engage in protected activities at the workplace often implicate these competing interests. The utilization of employers' communications systems for protected purposes implicates all three contextual questions, requiring a different balance.

   1. The Nature of Protected Activities

      Employers often advance at least one of two arguments claiming that purportedly protected activities were, in fact, unprotected. First, an employer may argue that the employee's conduct was individualized in nature, and thus not "concerted." (44) While concerted activities regarding terms and conditions of employment enjoy the Act's protection due to the policy concerns underlying Section 7, individualized complaints do not provide any justification for encroachment upon the employer's property interests. (45)

      Second, an employer may characterize such activities as unprotected misconduct because otherwise protected activities often run directly contrary to the employer's business interests. (46) Very serious misconduct, though otherwise protected, may so heavily burden the employer's property rights as to lose the protection of the Act. (47)

   2. The Time for Protected Activities

      Long-standing Board precedent has maintained the maxim that "working time is for work." (48) The term "working time" is critical because "that term connotes periods when employees are performing actual job duties, periods which do not include the employees' own time such as lunch and break periods." (49) Therefore, employers' rules against, and discipline for, employees engaging in protected activities (such as distributing union literature) during working time are presumptively valid. (50) However, employees may not be prohibited from engaging in protected activities during their own time, including breaks and lunches, because that time does not implicate employers' property rights. (51)

   3. The Place for Protected Activities

      The Supreme Court recognized the Board's authority to disallow employer prohibitions on protected activities in certain areas of its property in the seminal Republic Aviation case. (52) The Court identified the fundamental tension between employees' Section 7 rights and employers' properly rights as an important reason for deciding the case. (53) One of the issues, a prohibition on distribution related to concerns about littering and thefts from automobiles, prompted the Court to quote the Board's balancing of interests with approval. (54)

      The distinction between working areas, where employers may generally prohibit Section 7 activities, and non-working areas has been one of the most important applications of Republic Aviation. (55) An employer must demonstrate special circumstances in order to prohibit...