NLRB Opens Company Email Systems To Employees For Communications Protected By The National Labor Relations Act

Executive Summary: Perhaps overlooked due to the announcement by the National Labor Relations Board ("NLRB" or the "Board") of its revised procedures for union elections, the NLRB issued a decision on December 11 that will have a far-reaching impact on employers' e-mail systems.

In Purple Communications, Inc., 361 NLRB No. 126 (2014), the NLRB overturned Register Guard, 351 NLRB 1110 (2007), enf'd in part, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard the Board had held that employees have no statutory right to use their employers' e-mail system for Section 7 purposes. Section 7 of the National Labor Relations Act ("NLRA" or the "Act") gives employees the right to form, join or assist unions and to engage in other concerted activities for mutual aid and protection. Section 7 protects activities on behalf of a group of employees that could include criticism of a company's policies and procedures or its management , or other terms and conditions of employment, such as advocating for $15 per hour.

In a sharply divided 3-2 decision, the majority held that Register Guard improperly elevated property rights of employers over employees' rights. The Board determined that emails in the workplace are a means for employees to effectively communicate with each other at work about union organization and other terms and conditions of employment.

The case arose in the aftermath of a union campaign. The Communication Workers of America ("CWA") lost a union election and filed election objections and an unfair labor practice charge challenging the company's electronic communications policy. The policy stated in part that the company's computer and email system should be used for business purposes only. It also stated:

Employees are strictly prohibited from using the computer, internet, voicemail and email system, and other Company equipment in connection with any of the following activities:

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

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5. Sending uninvited email of a personal nature.

No employee had been disciplined under the policy. The basis of the CWA's challenge was that the policy was unlawful on its face. Relying on Register Guard, the administrative law judge ("ALJ") ruled in favor of the company on this issue.

Overruling the ALJ, the Board majority held: "we decide today that employee use of email for statutorily protected...