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Purple E-mail Eaters: NLRB Dramatically Increases Union Ability To Use Employer E-mail For Organization and Recruiting

By Stephen Fox and Jonathan Clark

A recent landmark ruling by the NLRB could allow unions to take full advantage of modern and inexpensive methods of communication to boost their organizing and recruiting campaigns in the workplace. Just months ago, an NLRB judge invalidated an employer’s e-mail policy that barred employees from discussing union activities via work e-mail.  This decision reversed years of precedent and may have sweeping ramifications for employers and unions throughout the country.

In 2012, the Communications Workers of America (CWA) petitioned to represent Purple Communications’ employees. After losing the elections, the CWA filed unfair labor practice charges against Purple, asserting that the company’s electronic communications policy interfered with the workers’ freedom of choice in the elections, thereby unlawfully interfering with employees’ rights to engage in protected concerted activity. 

Broadly speaking, Purple barred company employees from using work e-mail for nonbusiness purposes. More specifically, Purple’s electronic communications policy prohibited employees from, among other things, using the company’s e-mail system to engage in “activities on behalf of organizations or persons with no professional or business affiliation with the Company” or to send “uninvited email of a personal nature.”

In 2013, relying on longstanding case law, an Administrative Law Judge initially ruled in Purple’s favor and upheld the policy—citing a 2007 NLRB decision holding that policies prohibiting the use of a company’s e-mail system for purposes of union organizing were allowable.  But the union appealed, and in a 3-2 decision, the NLRB overturned the Register Guard decision and longstanding precedent.  In support of its holding, the NLRB stated that its 2007 decision was outdated because, in the years since Register Guard, e-mail had become the dominant force of communication.  Additionally, the NLRB held that employees have a presumptive right to use their employer’s e-mail systems to communicate about workplace issues—specifically including union organizing. 

Importantly, the Board’s holding in Purple was limited to e-mail only, and does not restrict an employer from monitoring its e-mail systems in furtherance of legitimate management objectives (i.e., to prevent harassment) or enacting certain constraints on the use of its systems (e.g., prohibiting large attachments).  Furthermore, the decision applies only to employees who have already been given access to their employer’s e-mail system in the course of their work; the opinion is not meant to address non-employee access to employer e-mail systems or require employers to provide employees with e-mail capabilities.

With Register Guard overturned, the NLRB then sent the Purple case back to the ALJ to decide whether any “special circumstances” justified Purple’s e-mail policy.  In March of this year, the ALJ determined that no such circumstances were presented and, accordingly, summarily invalidated Purple’s e-mail restriction policy.[2]

Purple appealed the decision and, in briefing submitted last month, argued that the ALJ’s original decision mistakenly assumed that employees who are granted access to their employer’s e-mail system for work purposes are entitled to use that same system on non-working time.

Ultimately, this ruling has the potential to be a game-changer for organized labor.  Internal union organizers, who themselves may serve outside counterparts, now have powerful communication methods that can get the union message out cheaply, quickly and frequently—using the employer’s tools as their own.  Employers who wish to limit this activity should seek counsel for advice on restrictive methods under the bounds of the law.