Bah Humbug: NLRB’s Long-Awaited E-Mail Access Decision Is Sure to Put a Damper on Holiday Cheer for Non-Union Employers

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December 12, 2014

On December 11, 2014, a divided [3-2, along partisan lines] National Labor Relations Board (“Board”) issued its long-awaited decision in Purple Communications, Inc., which many management-side labor relations professionals correctly predicted would fundamentally change how union organizing is conducted at nonunion workplaces [a copy of the Board’s decision is available here].
Through Purple Communications, Inc., 361 NLRB No. 126 (2014), the Board concluded that employees who are afforded access to employer email systems “in the course of their work” are permitted, absent “special circumstances” [more about that later], during “nonworking time,” to utilize such email systems to freely communicate with one another about unionization and other terms and conditions of employment. In doing so, the Board reproachfully overturned the Bush-era Register Guard decision [351 NLRB 1110 (2007)], long lauded by management as establishing a fair, realistic approach to employee solicitation through employer e-mail systems.
The Register Guard decision allowed employers to prohibit employees from using company email systems to engage in union-organizing solicitations and communications—during nonworking time and working time—as long as restrictions on the use of company email systems did not discriminate against rights protected by the National Labor Relations Act. In other words, under Register Guard, nonunion employers could lawfully approve the use of company email systems for employee communications about girl scout cookies, wedding invitations and sports tickets—and could, at the same time, prohibit communications about unionization, as long as one side of the debate was not favored. This is the so-called “unequal treatment of equals” analysis. However, through Purple Communications, Inc., the Board indicated that the Bush-era Board’s reasoning in Register Guard focused “too much on employers’ property rights,” and is “clearly incorrect.” 
Thus, the Board established a new standard, under which employees who have been granted access to employer email systems in the course of their work are entitled to use the system to engage in communications about unionization and terms and conditions of employment [e.g., wages, benefits, work environment, safety, managerial style and deficiencies, job security, etc.] while on nonworking time, absent special circumstances that make a prohibition during nonworking time necessary in order to maintain production or discipline.
According to the Board, “special circumstances” that might justify a partial or total ban on employee use of email systems during nonworking time include an “employer’s interest in protecting its email system…from damage or from overloads due to excessive use.” The Board concluded that employers are free to establish “uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.” However, according to the Board, “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.” 
The Board opined that employers are permitted to continue monitoring employee use of computers and email systems [e.g., to ensure productivity and prevent workplace harassment], without fear of creating an unlawful impression of surveillance, as long as monitoring practices are not “out of the ordinary.” In other words, the Board will be very suspicious of employers that alter regular monitoring practices on the heels of organizing activities. The Board also instructed that its decision did not prohibit an employer from notifying its employees that it monitors (or reserves the right to monitor) computers and emails for legitimate purposes, and that no reasonable expectation of privacy exists. 
The Board ostensibly narrowed its holding, declaring that its Purple Communications, Inc., decision does not apply to nonemployees, does not require employers to grant employees access to email systems where it has not chosen to do so, and does not apply to electronic media beyond email—such as Facebook, Twitter and YouTube [although the logical leap is not a difficult one to make]. Nevertheless, the Board all but conceded the expansive nature of its decision, when it acknowledged employer concern about routine monitoring of employee use of company computing systems for legitimate management reasons. 
The “win” for unions cannot be understated. Recently, in Conagra Foods, Inc., the Board instructed that employers may not prohibit “union-related conversations” during working time, because “union-related conversations” do not rise to the level of solicitations an employer may lawfully prohibit. Reading Conagra Foods, Inc. together with Purple Communications, Inc., one can reasonably predict that the Board will, in the future, conclude that employees are permitted to engage in “union-related email communications” during working time—as long as the email does not present, and seek to obtain a signature of, a union authorization card.
In the aftermath of the Purple Communications, Inc. decision, employers may choose to immediately revisit workplace electronic communications and computing equipment policies, or may choose to do nothing until the decision is appealed to a federal court—which is likely to happen given the gravity of the ruling. We strongly recommend that employers reexamine and revise policies that are out of step in light of this decision. In the interim, the attorneys of the employment, benefits and labor relations practice group will closely monitor all legal developments in this area.

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