The NLRB marked the end of summer by issuing its highly anticipated decision in Purple Communications, which many believed would address whether employers can continue to ban use of company equipment and technology, especially e-mail, for non-business purposes without violating federal labor law. To find such a ban unlawful would require the Board to overturn its 2007 Register Guard ruling, which held that employees have “no statutory right” to use an employer’s electronic communication system for organizing purposes. However, the Board kicked the proverbial can down the road—opting instead to sever the issue and hold it for further consideration on a later date—despite inviting parties and amicus curiae in April to submit briefs addressing whether the Board should overturn its decision in Register-Guard.
The alleged unfair labor practices (“ULP’s”) at issue in Purple Communications centered on two policies in the employee handbook: one that prohibited employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property”, and another that prohibited employees from using company technology (including all computers, laptops and email) for any non-business reason. The NLRB said that the rule against disruptions violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”), but stopped short of a broader ruling on whether employees’ emails to each other are protected organizing activity.
As a general rule, an employer violates Section 8(a)(1) of the NLRA through the maintenance of a work rule if that rule would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Section 7 gives employees the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (or to refrain from such activity). Where the rule does not explicitly restrict Section 7 activities, it will violate the NLRA only upon a showing that: (i) employees would reasonably construe the language to prohibit Section 7 activity; (ii) the rule was promulgated in response to union activity; or (iii) the rule has been applied to restrict the exercise of Section 7 rights. In determining whether employees would reasonably construe language to prohibit protected activity, the Board is required to give the rule a reasonable reading, refrain from reading particular phrases in isolation, and not presume improper interference with employee rights.
As a result of the Board’s punt in Purple Communications, Register Guard remains controlling law. And until the NLRB revisits the issue (most probably after midterm elections in November), employers may continue to operate as if they have a property right in their email systems and may therefore lawfully prohibit employee use of such systems for non-business reasons.
Even though employers dodged a bullet with respect to their email systems for the time being, it is clear that the NLRB is continuing its course of scrutinizing work rules in nonunion workplaces with rigid determination. As a result, employers must continue to review and evaluate their own policies to withstand NLRB scrutiny. In so doing, it is a best practice to get rid of any ambiguous language and make clear that the policy is not intended to interfere with concerted protected activities under the NLRA.