248-409-1900 dburke@mi-worklaw.com

By: Bill Pilchak – 12/23/14

On December 11, 2014, the National Labor Relations Board issued its opinion in Purple Communications, Inc., 361 NLRB No. 26 (2014), which involved an attempt by the Communications Workers of America to organize workers. When the union lost the election, it filed objections and an Unfair Labor Practice Charge contending that its efforts had been hampered by the company’s e-mail policy, which provided:

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.

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:

. . . .

  1. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.

. . . .

  1. Sending uninvited email of a personal nature.

In the 2007 Register Guard decision, the (Bush era) NLRB had ruled that the e-mail system was the property of the company, and that the employer could ban the use of its e-mail system for personal reasons, as long as it did not enforce the policy discriminatorily. That last caveat presented a daunting challenge: Employers couldn’t allow announcements that Girl Scout Cookie orders had arrived but prohibit dissemination of news of a union-organizing meeting. One wonders how many employers could show that no personal communications were tolerated. Nevertheless, Register Guard at least allowed policies to prohibit use of e-mail. Purple Communications reversed Register Guard, saying:

“[W]e decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

In other words, employees cannot be restrained from using company e-mail for concerted protected activity, such as publicizing a particular union, notifying co-workers where and when discussions with organizers and business agents will occur, and in fact campaigning for “yes” votes in a scheduled election unless such communications interfere with timely performance of work or occur during working time.

The Obama-era Board has granted access to e-mail, despite Purple Communication’s cogent argument that workers need access to e-mail less today than they did in 2007, given the abundance of social media connections that those interested in forming a union may pursue.

Employers should revisit their e-mail (and social media) policies to assure that their policies do not likewise forbid Section 7 activities. Merely having such a policy could give an unsuccessful union a second bite of the apple if it loses the election, or enable a union to change an economic strike (where workers may be permanently replaced) into an unfair labor practice strike (where workers must be returned after the strike).

Employers will wonder what fall-back position may be taken. First, the Board has suggested that “special circumstances” might justify a total ban on the use of e-mail, although those circumstances are expected to be exceedingly rare. Second, the decision did not address use of the company email system by non-employees (e.g., union officials) who presumably may still be denied the right to use the company e-mail. Third, the decision is limited to those employees who already have access to the email system in the course of their work and does not require employers to provide such access. And finally, Purple Communications says employers may apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline. Some employers already constrain personal use of internet and e-mail to mid-day breaks. Such a window is not likely sufficient and consideration should be given to expanding the window to all non-working time.

Moreover, the decision does not affect the employer’s right to monitor employee mail communications. Thus, by retaining provisions in the policy that all e-mail is the property of the company and may be reviewed at any time, some employees might be disinclined to proclaim union loyalties in the public forum. Still, companies facing an organizing effort are not encouraged to review e-mail transmissions to gauge pro-union sentiments or step up their monitoring efforts, because that could constitute “surveillance” of protected activity.

Along with the “Quickie/Ambush” election rules   http://mi-worklaw.com/nlrb-issues-final-rule-on-quickie-elections/, the Purple Communications decision will strengthen the hand of unions seeking to organize workers. Hopefully, an ever-more-educated workforce in most segments of the economy will continue to turn away from unions as they have been doing for the past two decades.