As Ryan reported yesterday, the Board has overruled Purple Communications and held that employees—in most circumstances—may not use an employer’s email system to communicate about unionization or other section 7 activity. The effects of this decision (Rio All-Suites Hotel) are likely to be significant given the fact that, in many workplaces, the only way that employees can feasibly communicate with each other—and especially with co-workers they don’t know and never see—is via the company email system. Notably, the Board has decided to apply the rule of Rio All-Suites retroactively to pending cases, which may have implications for the situation at Google.

There is a lot wrong with the analysis in Rio All-Suites, much of which was addressed in Member McFerran’s dissent and highlighted by Jeff Hirsch over at Workplace Prof Blog. To me, though, Rio All-Suites is more proof that Cindy Estlund got this whole area of law right when she wrote about Lechmere. In Lechmere, the Supreme Court dealt with the question of whether an employer could exclude union organizers from its privately-owned parking lot and relegate the organizers to a grassy strip where they could hold up signs as employee cars passed by. Drawing a distinction between the section 7 rights of “non-employee” union organizers and employees, and relying on the property rights of the employer, the Court found that exclusion was permissible. In Labor, Property, and Sovereignty After Lechmere, Estlund shows that the Supreme Court got property law wrong in the case, vesting employers with greater property rights than they would have enjoyed under the state law from which those rights were derived.

Based on this analysis, Estlund then recommends a better approach to resolving cases where the property rights of employers purportedly conflict with the section 7 rights of employees. Rather than allowing employers to assert a “bare” right to exclude others from their property, Estlund argues that:

When an employer seeks to prohibit activity that is otherwise protected by section 7 by asserting its right to private property, the employer must first demonstrate ‘good reasons’ for excluding the protected participants.

She continues by explaining that good reasons cannot include the limitation of otherwise protected section 7 activity but must amount to “other substantial functional justifications.”

Estlund’s analysis and proposal seem correct for a very basic reason. As the Supreme Court has made clear since Republic Aviation—and as the Rio All-Suites Board accepts—resolution of cases like Lechmere, Purple Communications, and Rio All-Suites requires the Board to balance employer property rights and employee section 7 rights. And although weighing these two things can’t truly be done with precision, the process at a minimum requires us to assess the relative weights of the particular section 7 activity and the particular property interest at stake. Knowing what the employer’s particular property interest is requires knowing something about the functional justification which the property right is serving. Otherwise, the Board would have to know how to weight property rights in the abstract – a weighting that seems conceptually impossible.

In Purple Communications and its predecessor case (Register Guard) there was at least a debate about whether the employer had any “substantial functional justifications” for restricting employee email use. Many of those asserted rationales—including preserving server space—seemed silly, others—like the possibility for inappropriate emails—somewhat more plausible. At least, however, consideration of these factors allowed some actual attempt at balancing. But in Rio All-Suites the Board eschews any such attempt and in fact strongly suggests exactly what I’ve described as conceptually impossible: that the Board can balance specific employee section 7 activity (here, using email to contact co-workers about union activity) against the employer’s “bare” property right.

To make this point, the Board relies on the Restatement (Second) of Torts and a hypothetical contained therein. That hypothetical goes as follows:

A leaves his car parked in front of a store. B releases the brake on A’s car and pushes it three or four feet, doing no harm to the car. B is not liable to A.

Although the Board accepts the Restatement’s conclusion that B is not liable to A in this hypothetical—because there is no harm to A—the Board nonetheless concludes that “we do not believe that B’s actions can reasonably be regarded as rightful.” It then holds that “the fact that liability for a trespass to personal property requires evidence of harm does not derogate from the owner’s right to control the use of that property.” In other words, according to the Rio All-Suites Board, what matters is the existence of the bare property right; the existence or absence of actual harm is irrelevant. (As McFerran points out in dissent, this is not the first time the Board has said as much. It takes the same position in Bexar County, for example.)

The problem with this analysis in the context of cases where the Board must balance employer property rights and employee section 7 rights should now be clear. A “bare” right to property is too abstract to meaningfully weigh against a particular form of section 7 activity. Absent consideration of “substantial functional justifications”—absent actual weighting of specific employer interests and specific section 7 activity—what we have is not balancing but simply deference to employer property. And, since Republic Aviation, simple deference to employer property has not been a permissible way to resolve a case like this one.