NLRB: Employees Have Right To Use Employer's Email System

Purple Communications, Inc. v. Communications Workers of America, AFL-CIO (NLRB Decision) (Issued on 12/11/14)

Last week the National Labor Relations Board (NLRB) issued its long-awaited decision in Purple Communications, Inc. v. Communications Workers of America, AFL-CIO. In a 3-2 decision, the NLRB overturned its prior precedent in order to hold that:

[E]mployee 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.

The NLRB majority characterized this decision as “carefully limited.” According to the majority, this decision only applies to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Further, the majority states that an employer may still justify a total ban on nonwork use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, any controls over an employer’s email system must be applied in a uniform and consistent manner, and only to the extent such controls are necessary to maintain production and discipline.

In reaching this conclusion, the majority overturned its 2007 decision in Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). The majority said that Register Guard focused too much on the employers’ property rights and too little on the importance of email as a means of workplace communication. The majority then went on to discuss various statistics on the use of email in the workplace. For example, the majority cited to a report that found email to be the most pervasive form of communication in the business world. In offices that rely exclusively or heavily on telework, email is the predominant means of employee-to-employee communication. The majority also noted that in City of Ontario, California v. Quon, 560 U.S. 746, 759 (2010), the Supreme Court found that some personal use of employer email systems is common and, most often, is accepted by employers. For all these reasons, the majority held that Register Guard could not stand and overruled it.

The majority opinion drew two lengthy dissents. Member Johnson criticized the majority opinion as absolutely not carefully limited because employers will find it extremely difficult to demonstrate special circumstances sufficient to ban or limit email use. Member Johnson also criticized the majority’s characterization of email as the modern day water cooler. According to Member Johnson, email is nothing like a physical “natural gathering space” such as a water cooler. According to both dissenters, the majority should not have overruled Register Guard

Comments:

Member Johnson’s dissent utilizes the most interesting graphics of any NLRB decision I’ve seen. On page 32 of the pdf version, Member Johnson attaches a “visual representation” of an email network and then comments that it “does not resemble a water cooler or physical gathering place in any way.” Well, that’s certainly true. I’m not sure what in the world it is but it’s definitely not a water cooler. (Check out his other interesting graphics on page 44, 46, and 47.)
So what does this mean for California public employers? There is no direct impact from this decision as public employees are not covered by the NLRB. However, it’s just a matter of time before unions in California begin urging PERB to follow the NLRB’s decision in Purple Communications. This is because current PERB precedent – which holds there is no statutory right to use an employer’s email system – is based in part on the Register Guard case that the NLRB just overturned. As I noted in a prior post, to get an idea of where PERB might go just take a look at the proposed decision of the Administrative Law Judge in City of County of San Francisco (2013) (PERB Case No. SF-CE-716-M) (37 PERC ¶171). In that case, the ALJ reached a very similar conclusion to what the NLRB reached in this case.
If this issue ever reaches the Board at PERB, I think a lot more consideration must be given to the fact that public employers have a special interest in the use of resources funded by taxpayers and in avoiding communications that may carry the imprimatur of the public agency. As noted in Member Johnson’s dissent, this decision may not be very limited at all and that’s a big potential problem.