Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Jeff Bosley and Colin Wells
• Publication year: 2015
• Citation: Vol. 29 No. 2

NLRA Case Notes

By Jeff Bosley and Colin Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Board Rules Workers Have a Presumptive Right to Use Employer Email Systems for Protected Activity on Non-Working Time

Purple Commc'ns, Inc., 361 NLRB No. 126 (Dec. 11, 2014)

A sharply divided National Labor Relations Board (NLRB or Board) held in Purple Communications, Inc., that employees who have access to employer email systems for business purposes must presumptively be allowed to use those systems for protected activity during non-working time. In so holding, the Board reversed its decision in Register Guard, 351 NLRB 1110 (2007). The majority stated that the Register Guard decision was "clearly incorrect," and criticized the Register Guard majority for "focusing too much on employers' property rights and too little on the importance of email as a means of workplace communication."

Purple Communications (Purple or Employer) provides sign language interpretation services. Purple's video relay interpreters provide real time, two-way interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters work at sixteen call centers that process calls on a nationwide, around-the-clock basis. The interpreters were provided access to the Employer's email system at their workstations, on break area computers, personal computers, and smart phones. The Employer's internet, intranet, voicemail, and electronic communication policy stated in pertinent part:

Computers, lap tops, internet access, voice mail, electronic mail (email), Blackberry, cellular telephones and or other company equipment is provided and maintained by the [sic] Purple to facilitate Company Business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.

The policy also specifically prohibited employees from using computer, internet, voicemail, and email systems, and other company equipment, in connection with "[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the [Employer,]" and from "[s]ending uninvited email of a personal nature." The majority noted: "The record is sparse regarding the extent to which the interpreters have used the [Employer's] email for non-business purposes or have been disciplined for violation of the electronic communications policy."

In 2012, the charging party, Communications Workers of America, AFL-CIO (CWA or Union), filed petitions to represent the interpreters, resulting in a board election at seven of the Employer's call centers. The Union filed objections to the elections' results at two California facilities, including an objection asserting that the Employer's electronic communications policy interfered with the interpreters' freedom of choice in the election. Applying Register Guard, an Administrative Law Judge (ALJ) found Purple's policy was lawful.

In Register Guard, a divided board held 3-2 that as with other employer-provided equipment, such as telephones and bulletin boards, employees did not have a right to engage in protected activity on an employer's email system. If an employer allowed non-work-related use of its email system, though, the employer was prohibited from discriminating between protected activity and other non-business uses. The Purple Communications majority expressly reversed Register Guard as to both its holding and the framework underlying the holding.

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The majority criticized the Register Guard majority as failing to "adapt the Act to changing patterns of industrial life," and for placing more weight upon the Board's equipment cases than those cases could bear. The majority found that email has become such a significant conduit for employee communications that it is effectively a new "natural gathering place" and a "forum" in which coworkers will seek to persuade fellow workers in matters affecting their organization and other matters related to their status as employees. The Board also found that, rather than decreasing an employee's productivity, email can increase or enhance a worker's productivity. The majority stated that email is often the "fastest and least disruptive way to do a brief personal communication during the work day, and employees who are forbidden or discouraged from occasional personal use of email may simply need to take more time out of the day to accomplish the same task by other means," citing Schill v. Wisconsin Rapids School District, 786 N.W.2d 177, 182-83 (Wis. 2010). The Board also rejected a contention that its decision would increase costs to employers, stating that any marginal increase in use and cost of email due to protected activity would be de minimis.

The majority then adopted a new analytical framework for employee use of an employer's email system. Relying on the reasoning of Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the majority held that when employees are given access to an employer's email system, they have a presumptive right to engage in protected activity on that system during non-working time. This presumption can be rebutted by an employer when special circumstances justify a particular restriction. In such cases, the majority cautioned that employers must demonstrate the connection...