On April 30, 2014, the National Labor Relations Board invited submission of amicus briefs in the case of Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531; and 21-RC-091584), as it considered whether to overrule precedent to create an employee right to use an employer’s electronic mail systems for union activity. The administrative law judge, relying on Register Guard, 351 NLRB 1110 (2007), dismissed the allegation that the employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes. The General Counsel and union excepted.

Last week, in Purple Communications, Inc., 361 NLRB No. 43 (Sept. 24, 2014), following thorough litigation by the parties, receipt of some twenty amicus and reply briefs, and at least one congressional hearing, the Board… punted:

consistent with our notice and invitation to file briefs issued on April 30, 2014, we sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.

Essentially, because the Board otherwise found the employer to have committed unfair labor practices and objectionable conduct sufficient to order a re-run election, it chose not to reach the more controversial issue — at this time. From footnote 3 of the decision:

The judge found the electronic communications policy lawful based on Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). The General Counsel argues that Register Guard should be overruled, and our April 30, 2014 notice and invitation to file briefs sought input from the parties and amici on that question. Ac- cordingly, today’s decision does not address Register Guard or Purple’s electronic communication policy on the merits.

Given the strenuous advocacy of the General Counsel, AFL-CIO, and other interested parties, this is surely not the final word on this issue. The Board could easily have simply upheld the ALJ’s application of existing precedent in this case, instead of “sever[ing] and hold[ing]” on the question. Rather it seems eager to create this new substantive right for employees given the right circumstances. A case with a cleaner fact pattern, reaching the Board after midterm elections, may well provide that opportunity.