National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue
On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.
In addition to asking the public to address whether the Board should “adhere to, modify, or overrule” Purple Communications, the Board has also asked the briefs to address the following:
If Purple Communications is overruled, what standard should replace it?
If the Board reverts back to the Register Guard standard, should there be exceptions for situations in which employees are limited in their ability to communicate with each other using methods other than e-mail, and should those exceptions be specified in advance or established on a case-by-case basis?
What should the standard be for policies related to other computer resources and/or other types of electronic communications sent or received by employees using employer-owned equipment?
Democratic Board Members Pearce and McFerran each filed a sharp dissent criticizing the majority’s decision to revisit Purple Communications, both arguing that the decision in Purple Communications was carefully considered, there has been no change that warrants its overruling, and nothing should be done while the appeal of the Board’s decision in Purple Communications remains pending before the Ninth Circuit. In response, the Republican-led majority pointed to the Obama-era Board decision in Lamons Gasket Co., 355 NLRB 763 (2010), where the then Democratic majority granted review and invited the filing of briefs to reconsider Board precedent that had just been set 3 years earlier in Dana Corp., 351 NLRB 434 (2007). Interestingly, Member McFerran addressed the “perceived inconsistency” between the position taken by the Obama-era Board to revisit Board precedent in Lamons Gasket Co. and the current dissenters view on the appropriate circumstances in which to solicit public input about the reconsideration of precedent, noting that she was not a member of the Board in 2010 and that she was “entirely comfortable with any perceived tension between [her] views expressed here and those expressed by Chairman Liebman in that case, because the question of what factors the Board should take under consideration in determining whether to revisit precedent is a difficult institutional issue that each Board Member must approach with his or her own independent judgment.”
The briefing schedule set by the Board requires briefs to be submitted by September 5, 2018, and responsive briefs to be submitted by September 20, 2018. Given the current Board composition, employers should expect a return to a standard similar to the one set forth in Register Guard.