The facts

The case arose when the Communication Workers of America (“CWA”) lost a Board election to represent employees of Purple Communications, a company that provides sign language interpretation services. The CWA filed objections and unfair labor practice charges, alleging among other things that a policy in the employee handbook prohibiting the use of the company e-mail system for “activities on behalf of organizations…with no professional or business affiliation with the Company” invalidated the election results and violated the National Labor Relations Act.

The nuts and bolts of the decision

A majority of the Board held that “employee use of e-mail for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems.” In so holding, the Board explicitly overturned its 2007 Register Guard opinion, which held that employees could have no statutory right to use their employer’s e-mail systems for Section 7 purposes. The Purple Communications Board fleshed out its core holding with the following points: (1) the Act does not place an affirmative requirement on employers to provide employees with an e-mail system—only when an employer has introduced e-mail systems into the workplace environment does the presumptive right of employees to use it for organizing arise; (2) an employer can justify banning all non-work use of its e-mail system, as Purple Communications did, if it demonstrates that “special circumstances make the ban necessary to maintain production or discipline”; and (3) an employer may apply uniform and consistently enforced controls over its e-mail system if such controls are necessary to maintain production and discipline.

The Board’s reasoning and its implications

The Board also limited its decision to employee use of e-mail, explicitly leaving for another day the issues of (1) non-employee access to employer communications systems (for instance, outside union organizers) and (2) the use of employer communication technologies other than e-mail for Section 7 purposes (for instance, an employer-provided cell phone network). But the decision’s underlying reasoning, as well as certain express statements by the majority, indicate that the presumptive right of access likely applies to almost all employer-provided communication systems and that the Act entitles non-employees to some level of access as well (although the non-employee access issue is less certain). And, more generally, Purple Communications signals a re-emphasis by the Board on the importance of Section 7 rights relative to employer property rights and invites challenges to a whole range of employer restrictions on the use of equipment and facilities for organizing purposes.

The Board first dismantled the reasoning underpinning the Register Guard decision and questioned the continued precedential strength of a line of cases that had been interpreted to grant employers broad control over employee use of their equipment for Section 7 purposes. The Board began its attack by emphasizing how critical Section 7 communication at work is to the Act. It next discussed the dominant, ever-expanding role of e-mail in today’s workplace, concluding that Section 7 communication at work—which again is so pivotal to the Act—must now include Section 7 communication via work e-mail. The Board thus categorized work e-mail not as “equipment” like a bulletin board but instead as a “gathering place” like a cafeteria, and applied longstanding Supreme Court precedent guaranteeing the use of such natural gathering places for Section 7 communications.

The Board then suggested that past pronouncements to the effect that employers could broadly prohibit non-work use of their equipment, on which the Register Guard majority had relied, were just dicta of questionable continued precedential validity. Moreover, the Board explained, those pronouncements were grounded in the outdated assumption that Section 7 use of equipment would add substantial costs and substantially limit employer use of the equipment, which no longer made sense in an era of high-capacity e-mail and phone systems. Here, the Board more or less expressly indicated that it would seriously consider overturning precedents limiting employee use of employer phone systems for Section 7 purposes if that issue were put to it directly. Regarding the notion that employees have no right to use employer equipment for Section 7 purposes, the Board stated bluntly: “We reject its application here, and we question its validity elsewhere.”

In sum, the Board laid the foundation for its holding by establishing the following principles: (1) workplace communication among employees is central to effectuating the Act; (2) given the nature of employment today, workplace communication must include work e-mail to be meaningful; (3) contrary to some past Board pronouncements, an employer’s control over its equipment is far from sacrosanct. With these principles firmly in place, the Board then “adopt[ed] a new analytic framework” for e-mail systems (and, presumably, other similar communication technologies) modeled on the Supreme Court’s landmark Republic Aviation decision. Under this new framework, as outlined above, employees have a presumptive right to talk to each other for Section 7 purposes via work e-mail on non-work time unless the employer can demonstrate “special circumstances” that would justify a total ban on non-work use of e-mail.

What’s next

Purple Communications may or may not be appealed to a federal appellate court. If it is, the fairly elaborate separate dissenting opinions from Republican Board Members Miscimarra and Johnson preview the arguments the appellants will likely make. Their core arguments included: (1) access to employer e-mail does not meaningful add to employees’ ability to communicate with one another given the many private alternative technologies available, (2) the majority undervalued employers’ property rights in their e-mail systems, (3) the majority’s opinion leaves many questions unanswered and will be confusing for employers, unions, and employees, and (4) granting employees the right to use an employer’s e-mail system to express views to one another with which the employer disagrees violates the employer’s First Amendment rights by requiring the employer to pay for speech involuntarily. The majority considers and, in my judgment, effectively rebuts each of these points in its opinion, but at least some of them are likely to appear in an appeal from the Board’s decision.

As I have mentioned, the majority opinion calls into question all restrictions on employee use of employer equipment for Section 7 purposes during non-work time. Johnson in dissent acknowledges as much, stating that the majority’s “rationale extends beyond email to any kind of employer communication network.” Unions and other worker advocates should accept the Board’s invitation and push challenges against employer policies banning non-work use of employer-provided phones, instant messaging, and other communication technologies. Such efforts are likely to yield Board decisions extending Purple Communications’s presumptive right. Advocates should also test the issue of nonemployee access to employer communication systems. The outcome here is less certain, but a successful result would mean outside union organizers would have the guaranteed ability to communicate with employees via work e-mail, a potentially significant organizing tool.