The National Labor Relations Board has changed in size and composition several times during the Obama administration, but one thing has remained constant: its pro-union majority. Labor officials lately are feeling pretty glad about that. On December 11, the NLRB ruled 3-2 that employees with access to an employer e-mail system can use that system for union organizing during “nonworking time.” The ruling, Purple Communications Inc., overturns a 2007 NLRB decision, Register Guard, which held that a company has the discretion to ban non-business-related e-mail interactions among workers, including union-related ones. The board insists the impact of its newest ruling is “limited.” Yet unions, especially the Communications Workers of America, see a clear victory along with an expansion of organizing opportunities. And they’re probably right.
Union Corruption Update discussed this case at length several months ago. Back on April 30, the NLRB had posted a notice soliciting amicus briefs concerning an October 2013 ruling by an Administrative Law Judge. The case, known as Purple Communications, focused on the right of an employer to block its employees from using company e-mail for organizing. While it is true that Section 7 of the National Labor Relations Act (NLRA) guarantees employees the right to organize or join a union without employer interference or retribution, the exercise of that right, in practice, may collide with an employer’s right to restrict usage of its own property for that purpose. This is an issue whether organizing is performed by employees themselves or by outside parties. The National Labor Relations Board sought to achieve a balance. The NLRB, at last operating at full five-member strength, and with a Democratic Party majority, appeared primed to side with the unions.
For about six years, unions had been at a disadvantage in the area of cyberspace organizing. In December 2007, during the Bush administration, the NLRB ruled 3-2 in Register Guard [351 NLRB 1110 (2007)] that a Eugene, Ore.-based newspaper, The Register Guard, was within its rights when it established a ban on e-mail and other employee communications systems “for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations” and enforced this ban upon a particular employee. The board concluded that this policy extended to union organizing, in this case by the Newspaper Guild, an affiliate of the Communications Workers of America (CWA). “Employees,” the NLRB held, “have no statutory right to use their Employer’s e-mail system for Section 7 purposes.” The board, however, did hand the CWA a partial victory; Register Guard management did not have the authority to punish employee use of company e-mail for purely informative (as opposed to advocacy) purposes. A District of Columbia federal appeals court in July 2009 overturned the heart of the ruling [Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009)]. As long as an employer’s e-mail policy fails to distinguish between different purposes of solicitation, the court ruled, the employer may not discipline an employee for union solicitation. The reprimanding of the employee in question, Suzi Prozanski, represented a selective application of the no-solicitation policy and hence was invalid.
The ruling opened the door to a National Labor Relations Board revisit of the issue. Union officials certainly sought as much. But with the uncertainty that came with the NLRB operating short-handed – for months with only two members, in fact – there was little that they could do. Their hands had been further tied starting in January 2012 with President Obama’s three board recess appointments of dubious legality. The Senate, led by Majority Leader Harry Reid, brokered a deal in July 2013 to break the logjam. The Communications Workers of America already had a ready-made case from Northern California. The Newspaper Guild-CWA had been frustrated in its efforts to organize workers at a Sacramento-area firm, Purple Communications Inc., a leader in American Sign Language services. The union had filed a complaint with the NLRB in 2012 alleging that a company ban on employee use of official e-mail for non-business purposes constituted an unfair labor practice. At first, things didn’t go so well for the union. On October 24, 2013, Administrative Law Judge Paul Bogas ruled in favor of the company, dismissing an allegation by pro-union NLRB General Counsel Richard Griffin that the ban on employee use of its e-mail system to discuss pay, benefits and working conditions violated the National Labor Relations Act. Immediately following the ruling, the NLRB transferred the case to its own docket. This past April, it solicited comments.
Employer and labor groups around the country eagerly awaited the outcome. And last Thursday, a ruling came down: Workers with access to their employer’s e-mail system have the right to use it for union organizing, and beyond that, general workplace issues, as long as such interaction occurs during “nonworking time.” As expected, the board’s three Democrats – Chairman Mark Pearce, Kent Hirozawa and Nancy Schiffer (whose tenure ended just five days later) – sided with the Newspaper Guild; the two Republicans – Harry Johnson III and Philip Miscimarra – sided with the employer. In effect, the majority applied the NLRB’s 1999 ruling in Sandusky Mall Co. [329 NLRB 618 (1999)] to the world of e-mail. In that Ohio case, the board held that because the management of a local shopping mall had allowed general usage of its property by outside groups, it could not make an exception for unions. The board affirmed its position a little over a decade later by letting stand a decision by an Administrative Law Judge that Roundy’s, a Milwaukee-area supermarket chain, could not prevent union organizers from passing out handbills in common areas (e.g., parking lots) where the company held a nonexclusive easement (Roundy’s Inc. 356 NLRB No. 27 (2010)]. The board expressed its view that e-mail has evolved into a “natural gathering place” for workers, and that interpretations of the National Labor Relations Act should reflect as much.
Union officials, of course, are delighted with the Purple Communications ruling. Newspaper Guild President Bernie Lunzer put it this way: “With this decision, the NLRB has taken a major step forward to make sure workers’ rights to organize are protected in the 21st century workplace.” And AFL-CIO Associate General Counsel Matt Ginsburg praised the ruling as applying “well-established law regarding the right of employees to discuss working conditions during breaks and other non-working time to the modern context of e-mail communication.” Yet the union victory was not complete. For one thing, the National Labor Relations Board did not address whether the employer had violated worker rights, instead preferring to remand that issue to an Administrative Law Judge. Second, the NLRB declined to consider whether employees have a right to use employer e-mail to communicate directly with unions and other outside parties. The majority admitted: “We do not address e-mail access by nonemployees.” And third, the board left open-ended the definition of “nonworking” time, save to say that it involves “no expectation of employee productivity.”
For these reasons, the decision may wind up raising more issues than it answers. And the result may be a more contentious workplace. The dissenters in the case, Johnson and Miscimarra, acknowledged as much. The following are some key considerations that should make this debate a long one, including an appeal by the employer to the Supreme Court.
First, online communications need not take the form of employer e-mail. Employees can open personal e-mail accounts, Facebook, LinkedIn, Twitter and other social media accounts, or send text messages. It is hardly unreasonable to say that most employees by now already have done one or more of these things. Opening an employer e-mail account to union organizing would seem a needless undermining of employer property rights. Yet the Purple Communications decision appears to treat this issue as an afterthought.
Second, the ruling stands against a lengthy history of court and NLRB decisions allowing employers to create a “no solicitation/no distribution” policy and apply and apply it to unions. A ban is legitimate if: 1) a union has a reasonable off-site access to employees; and 2) the employer does not discriminate by allowing access to other non-employee groups, whether of a business, political, religious or some other nature. The Supreme Court established this doctrine in Republic Aviation v. NLRB [324 U.S. 793 (1945)], and in varying contexts and degrees, upheld it in cases such as NLRB v. United Steelworkers [357 U.S. 357 (1958)], NLRB v. Baptist Hospital Inc. [442 U.S. 773 (1979)] and Lechmere Inc. v. NLRB [502 U.S. 527 (1992)]. Moreover, the National Labor Relations Board has affirmed it in Hammary Manufacturing Corp. [265 NLRB 57 (1982)], Adtranz [331 NLRB 291 (2000)], Johnson Technology Inc. [345 NLRB 762, 763 (2005)] and elsewhere. With the Purple ruling, even employers with an evenly-enforced solicitation policy may have to accommodate union organizing.
Third, the definition of “nonworking time” is subject to interpretation, a reality that would seem to necessitate new rules clarifying distinctions between “nonworking” and “working.” A union can say that advancing workplace rights, by definition, is work-related, even if the employer doesn’t think so. And there are certain types of workplace activities, such as a business lunch, where work and recreation all but blend into one. The board handed the Administration Law Judge the task of drawing a bright line for the time being.
Fourth, virtually all employers will have to rescind full bans on non-business use of official e-mail. The board indicated that a total ban on non-business use of company e-mail could be permitted if the employer could demonstrate “special circumstances” that “make the ban necessary to maintain production or discipline.” Yet it also admitted that meeting this bar would be next to impossible: “[W]e anticipate that it will be the rare case where special circumstances justify a total ban on non-work email use by employees.” The majority added: “We emphasize that an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction. The mere assertion of an interest that could theoretically support a restriction would not suffice.” Few employers enforce a complete ban on nonwork e-mail anyway; events such as holiday parties and charity fund-raisers typically get a free pass. The result of this could be a proliferation of lawsuits by employers and employees alike.
Fifth, the Purple ruling likely may have the impact of reducing the range of employees to which an employer will grant e-mail access. The decision, it must be emphasized, only applies to employees who use company e-mail as part of their work. It does not require employers to open their e-mail to other employees. The majority of board members clearly expressed the view. To discourage e-mail organizing, employers may decide to allow a smaller portion of its work force official e-mail privileges. Indeed, the proportion of employees not involved with official e-mail already is significant. Philip Gordon and Noah Lipschultz, attorneys with the San Francisco employment law firm of Littler Mendelson, explain:
While a substantial majority of employees will benefit from this new right, certain categories of employees likely will not. For example, employees who work on the sales floor at retail establishments and factory workers on the plant floor typically do not access corporate e-mail “in the course of their work.” Employers may want to re-think whether to allow e-mail access at all to employees and to consider the specific job duties of the employee and whether such access is necessary to perform the employee’s job functions.
The implication here is that employers, rather than be forced to retrofit all sorts of policies, including those unrelated to e-mail usage, simply may decide to limit e-mail access as much as possible. Again, the result may be a sharp upswing in lawsuits.
Like it or not, Purple Communications is a victory for organized labor. While nominally limited in scope, in practice it gives unions far more leeway in using cyberspace to communicate with potential members. Employers, even those scrupulously adherent to NLRA Section 7, may find themselves with less ability to challenge union campaigns that may cut into employee work time. By overturning Register Guard, the NLRB may have opened the door to a surge in unfair labor practice complaints. Labor organizing is not about playing “fair”; it’s about winning worker representation by any legal means necessary. The Communications Workers of America, like other unions, understands that.