By Wayne D. Garris Jr., J.D.
The Board reversed the Obama-era decision in Purple Communications, Inc., and “reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis.”
In a four-member decision presaged by its invitation for briefs last year, the National Labor Relations Board unsurprisingly found that an employer’s restrictions on computer and email use for nonbusiness did not violate Section 8(a)(1). Reversing the Board’s 2014 decision in Purple Communications and restoring the standard established by the Board in Register Guard, the Board stated that employers have a property right in restricting employee use of its equipment and that that the Purple Communications decision “impermissibly discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity” (Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, December 16, 2019).
Original charge. The union filed an unfair labor practice charge against the employer, a Las Vegas casino, arguing that its handbook policies prohibiting the use of company computer and e-mail systems for nonbusiness activity violated Section 8(a)(1) of the NLRA. In 2016, a law judge, applying Purple Communications, found that several of the employer’s computer use policies violated the Act. The employer filed exceptions, and both parties, the General Counsel, and numerous industry and labor organizations filed reply briefs to the Board’s Invitation to File Briefs.
Register Guard. In 2007’s Register Guard, the Board determined that employees do not have a right to use employer-provided email for Section 7 communications—concerted activities for “mutual aid or protection.” The Board rejected the argument that rules governing employees’ use of workplace email should be analyzed under the standard set forth by the Supreme Court in Republic Aviation Corp. v. NLRB, finding that the decision in Republic Aviation’s holding was limited to face-to-face communications between employees that did not involve the use of an employer’s equipment, such as email.
Purple Communications. In 2014, the Board overruled Register Guard in Purple Communications and held that if an employer allows employees to access its company email system, the employer cannot prohibit its employees from using the system for Section 7 protected communications. The dissenters in Purple Communications argued that the majority “demonstrated an unreasonable indifference to employer property rights” and that “because employees had no need to utilize employer-provided email in order to exercise their Section 7 rights, there was no basis for finding that employers interfered with, restrained, or coerced employees in the exercise of those rights by limiting business email to business-related purposes.
Overruled. Now the Board has overruled Purple Communications and restored the standard from Register Guard, concluding that employers have “a property right to control the use of [their email system].” The majority asserted that the decision was consistent with prior Board decisions, which held that employees did not have a Section 7 right to use other employer-owned equipment, such as televisions, copy machines, telephones, or PA systems.
Republic Aviation. The majority said that the Purple Communications decision was based on a “flawed” reading of Republic Aviation. In Republic Aviation, the Supreme Court examined employer bans on face-to-face union solicitation and ruled that such policies were unlawful, but that employers were allowed to place certain restrictions on Section 7 activity, such as bans on union solicitation during working time, but employers could not ban solicitation during non-working time.
Cannot distinguish working and nonworking as to email. According to the majority, the Purple Communications “seized” on Republic Aviation as the basis for its conclusion that employees have a statutory right to use their employer’s email system, during nonworking time, for Section 7 activity. The Purple Communications decision was flawed, the Board reasoning went, because Republic Aviation involved face-to-face activity in a physical location “where the line separating working and nonworking areas is generally clear, and where solicitation takes place synchronously and it is easily determined whether all employees engaged therein are on working or nonworking time.”
The reasoning of Republic Aviation cannot be extended to the use of an email system because email created “a virtual space in which the distinction between working and nonworking areas is meaningless” because email can be composed, sent, and read at different times.
Adequate avenues of communication exist. The proper reading of Republic Aviation is that employees must have “adequate avenues of communication” in order to meaningfully exercise their Section 7 rights and that employer property rights must yield to employees’ Section 7 rights only when necessary to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.”
Traditional methods of communication. Employees still have adequate avenues for communication, without email, such as face-to-face communication and distribution of union literature, suggested the Board. There is “no reason to believe that these methods of communication have ceased to be available in the typical workplace, and almost all employees continue to report to such workplaces on a regular basis,” it suggested. Furthermore, unlike the employees in Republic Aviation, employees in today’s workplaces have access to even more avenues of communication such as smartphones, personal email accounts, and social media. Thus, the majority concluded that the employer’s rules prohibiting the use company email for organizing had not placed an unreasonable impediment on Section 7 rights.
Exception. The majority acknowledged that there may be circumstances in which an employer’s property rights may “be required to yield” if the company email is the only adequate avenue of communication. These circumstances are likely rare, so the Board declined to clearly define the scope exception, leaving it to be determined on a case-by-case basis.
Dissent. In dissent, Member McFerran argued that the majority misrepresented the holding in Republic Aviation, where the Supreme Court stated “unequivocally” that an employer cannot restrict employees’ right to discuss self-organization unless the restriction is necessary “to maintain production or discipline.” She also contended that the majority mischaracterized the Purple Communications decision. That holding was limited to employees only; it did not require an employer to grant employees access to its email system for Section 7 communications when the employer had not otherwise granted access to its emails.
McFerran stated that “the twin premises” of the majority’s decision—that the Purple Communications decision is not a permissible interpretation of the Act and that the majority’s own interpretation is compelled by the Supreme Court precedent are incorrect. The majority’s error warrants reversal because “when the Board mistakenly believes that a particular interpretation of the Act is mandated, it has failed to properly exercise its administrative discretion and its decision cannot stand.”
Expert guidance. John T. Merrell, a shareholder in Ogletree Deakins’ Greenville office, provided helpful guidance on the Board’s new perspective. For example, must an employer prohibit incidental (”de minimis”) personal email communications, about lunch plans or Girl Scout cookie sales, or checking Facebook, if it is to bar Sec. 7 activity via email? He noted that “The Board said that any restrictions on employee use of IT resources must be ‘facially neutral’ and that such policies must not be applied discriminatorily.
Communications “of a similar character.” “In determining whether an employer has discriminated against Section 7 activity via Company IT resources,” Merrell continued, “the Board would presumably apply the test in Register Guard, which said “unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” The Board has applied this test to find that an employer violated the Act by allowing employees to use a company bulletin board to sell Girl Scout cookies, advertise a fundraiser for a children’s school, and sell Avon products, while removing pro-union posts from the same bulletin board. Making lunch plans or checking Facebook, on the other hand, arguably is not “of a similar character” to Section 7 activity.
Key takeaway.” Merrell characterized the “key takeaway” to be that “most employers are going to be able to adopt policies that prohibit employees from engaging in non-work-related use of company email or other IT resources. The only caveat is that those policies have to be facially neutral, which basically means such policies cannot expressly restrict Section 7 activity (like union organizing or group discussions of wages) via company IT resources while permitting other non-work-related use of company resources.”
“Any employers who adopt such policies have to also be aware that it is unlawful to discriminatorily apply those policies,” he said. So, it would be legally risky to discipline an employee who uses work email to solicit support for a union if the employer has been other employees to use their work email to engage in similar solicitation for other outside organizations.”
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