As we previewed here earlier today, the National Labor Relations Board has issued the remainder of the Purple Communications decision. The ruling, found at 361 NLRB No. 126 (Dec. 11, 2014), in effect creates a new substantive right of employees to use an employer’s computer networks and email systems to engage in union organizing.

Respondent Purple Communications provides sign-language interpretation services. Since June 2012, Respondent maintained an employee handbook that contained the following policy:

INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY

Computers, laptops, internet access, voicemail, 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.

Prohibited activities

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, 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 emails of a personal nature.

The Communications Workers of America (CWA) filed petitions to represent Respondent’s employees in the fall of 2012 at seven of Respondent’s facilities. The CWA filed objections to the election results at two of the facilities, and also filed unfair labor practice charges regarding Respondent’s electronic usage policy.

Board ALJ Paul Bogas, relying on the Board’s decision in Register Guard, dismissed the allegations and the CWA and the General Counsel filed exceptions to his ruling. The General Counsel argued that the “broad prohibitions on employees’ personal use of electronic communications . . . substantially interfere with Section 7 activity,” while the CWA argued that the Board “should adopt a presumption that employees may access employer email . . . to communicate about Section 7 matters if their employer generally allows them access to the system.” Respondent and its Amici, by contrast, argued that Register Guard was rightly decided: “employers may impose nondiscriminatory restrictions on employees’ nonbusiness use of equipment and . . . an email system should be treated like other employer equipment.”

Discarding decades of legal precedent, the majority sided with the General Counsel and the CWA and overruled Register Guard. That decision, the majority concluded, “undervalued employees’ core Section 7 right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.”

The majority explained its ultimate holding thus:

“[W]e adopt a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.”

In explaining its decision, the majority noted that “email remains the most pervasive form of communication in the world.” But then the Board made a leap in logic, positing that email has become a “natural gathering place” for employees to engage in conversation, and thus they should be able to use it to discuss Section 7 activities.  Buttressed by its leap in logic – that using the tangible computer equipment comprising email system is no different than simply speaking — the Board cited the Supreme Court’s seminal Republic Aviation decision to explain how the majority crafted its new analytical framework. Republic Aviation explained that a ban on oral solicitation on employees’ nonworking time was presumptively unreasonable, and that an employer implementing such a restriction “must demonstrate that special circumstances made the rule necessary in order to maintain production or discipline.”  Without any further guidance as to what types of circumstances might pass muster, the decision clearly places that burden on the employer.

The majority then tried to explain away all the Board’s contrary precedential decisions relating to employer equipment arising in the decades since Republic Aviation, asserting they were “different in material respects” from the instant matter.  For example, the Board argued that unlike the use of telephones or bulletin boards, “email’s flexibility and capacity make competing demands on its use considerably less of an issue than with earlier forms of communications equipment … [and that] Employee email use will rarely interfere with others’ use of the email system.”

Lastly, the majority concluded that its decision should apply retroactively because applying the decision prospectively “would continue a far-reaching, wrongful denial” of employees’ Section 7 rights. The majority then remanded the case to the ALJ to allow Respondent to present any evidence of special circumstances that would justify any restrictions on employee email communications.

Both members Miscimarra and Johnson issued lengthy dissents. Member Miscimarra’s dissent reasoned that the majority was incorrect on four counts. First, he writes that it is unreasonable to presume that limiting the use of employer email systems to business purposes “constitutes an unreasonable impediment to self-organization” as employees still have available to them numerous means of direct communications with each other.

Second, the majority’s ruling butts up against Electromation, Inc., 309 NLRB 990 (1992). In that case, the Board determined that an employer violated Section 8(a)(2) of the National Labor Relations Act by providing “pencils, paper, telephones, and a calculator” for employees to use in organizing activities. Now the Board is effectively compelling an employer to hand over its email system to its employees for organizing activity, and the tension between the two decisions is left unaddressed by the majority.

Third, now that employees have a statutory right to use the employer email system for organizing activities, it will be very difficult to determine what constitutes effective employer oversight of its email system and what constitutes unlawful “surveillance.” And finally, member Miscimarra’s dissent takes the majority to task for replacing a bright-line rule with a difficult to apply standard.

Member Johnson’s dissent is perhaps more scathing. Referring to the majority’s decision as “radical,” member Johnson writes that the “new standard will undermine the long settled Board and court principle that working time is for work.” Member Johnson also fervently disagrees with the majority’s conclusion that email is the new “water cooler.” A water cooler is clearly a non-work area, whereas “there is no easy-to-determine-and-administer dividing line between the working area and the nonworking area” in email and other virtual spaces. Rather, the two areas are commingled, which under the Board’s new standard effectively forces “water cooler” conversations onto the production floor.

Next, member Johnson explains that the majority is incorrect in holding that the Board’s “equipment cases” were inapposite. Email, member Johnson writes, is the employer’s property. It is a means of communication “that the employer owns and provides to its employees to advance productive business interests.” Thus the employer should be able to limit its usage to business purposes, just like with the bulletin board and the telephone, because “an employer has a basic property right to regulate and restrict employee use of company property.”

Lastly, member Johnson reasons that the majority’s decision is wrong because it is violative of the First Amendment. The employer will “inevitably pay employees during working time to compose” and review hostile speech. And to add insult to injury, the employer is also paying to host the system whereby hostile speech is composed and transmitted. In effect, “the majority’s rule compels employer funding of a huge volume of speech that the employer does not support,” which member Johnson contends is plainly violative of the Supreme Court’s First Amendment jurisprudence.

Employers should review the Purple Communications decision carefully. It may be true that many, if not most, employers who provide employees with email access for business purposes also tolerate some level of personal use.  But for those who have chosen to limit use to business-use only, the Board has today announced a seismic shift in its jurisprudence.  This decision has opened the door for employees, and by extension the unions they support, to use employer email systems – and perhaps additional employer equipment — for union organizing activities. Accordingly, employers should review their current email and computer usage policies to ensure that they comply with the Board’s new standard. Moreover, an employer who believes it has “special circumstances that [would] justify specific restrictions,” should develop its position and  compile as much supportive data as possible while structuring its policies.