The National Labor Relations Board's has changed in size and composition several times during the Obama administration, but its built-in pro-union majority has remained constant. 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 the system for union organizing during "nonworking time." The ruling, Purple Communications Inc., overturns a 2007 NLRB ruling, 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 - and expanded 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 in Purple Communications that an employer has the right to decide whether employees can use its 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 holds true whether the organizing is performed by employees themselves or outside parties. The National Labor Relations Board sought to achieve a balance between union organizing rights versus property rights. The NLRB, at last operating at full five-member strength, and with a Democratic Party majority, very likely appeared willing to side with the unions.
For about six years, unions had been at a disadvantage when it came to 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 by establishing 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." The board concluded 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 circuit court eventually upheld the ruling [Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009)].
Union officials have been aching to overturn the decision. But with the uncertainty that came with an NLRB operating short-handed - for a good while with only two members - there was little they could do for the time being. But when the Senate, led by Majority Leader Harry Reid, brokered a deal in July 2013 to resolve the issue of disputed presidential NLRB recess appointments and get membership back to full strength, unions saw their opening. The point of reference was a Northern California case. The Newspaper Guild-CWA had filed an unfair labor practices complaint with the NLRB against a Sacramento-area company, Purple Communications Inc., a leader in American Sign Language services. On October 24, Administrative Law Judge Paul Bogas ruled in favor of the company, dismissing an allegation by pro-union NLRB General Counsel Richard Griffin that the company's ban on employee use of its e-mail system to discuss pay, benefits and working conditions violated the National Labor Relations Act. The Board, having reopened the case, responded with its April solicitation of outside comments.
The long-awaited ruling came down this past December 11: Employees who have been granted access to their employer's e-mail system have the right to use it for union organizing, and beyond that, general issues about pay, benefits and working conditions, so long as such communication occurs during "nonworking time." As expected, the three Democrats on the board - Chairman Mark Gaston Pearce, Kent Hirozawa and Lauren McFerran - sided with the Newspaper Guild; the two Republicans - Harry Johnson III and Philip Miscimarra - sided with the employer. In effect, the majority has applied the NLRB 1999 ruling in Sandusky Mall Co. [329 NLRB 618 (1999)] to the world of e-mail. In that Ohio case, the board concluded 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 this position in 2010 by letting stand an Administrative Law Judge's ruling 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)]. In addition, the board expressed its belief that e-mail has become a key forum of communication about work-related and other issues among employees. As e-mail has become a "natural gathering place" for workers, interpretations of the National Labor Relations Act should reflect this.
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 the case to an Administrative Law Judge. Second, the NLRB declined to consider whether employees have the 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."
The decision, in fact, may raise issues than it answers. And the result may be a more contentious workplace. The two dissenters in the case, Johnson and Miscimarra, acknowledged as much. The following are some key issues that may make this debate a long one. If nothing else, those issues likely will form the basis for an appeal 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 today already have done one or more of these things. Opening an employer's e-mail account to union organizing would seem a superfluous 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 impose a "no solicitation/no distribution" policy at their workplace as long as it is established and enforced even-handedly. In other words, a ban that has the effect of discouraging unions from organizing at the workplace is permissible if it is applies in the same way to all other types of organizations, whether business, political, religious or other. 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 whose solicitation policy clears the bar may have to accommodate union organizing from within.
Third, the definition of "nonworking time" is subject to a sizable degree of interpretation. This almost certainly would necessitate rules to clarify the distinctions between "nonworking" and "working." A union can say that advancing the cause of workplace rights, by definition, is work-related, even if the employer doesn't think so. And there are certain 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 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 room to use cyberspace to communicate with potentially supportive employees. Employers, even those scrupulously adherent to NLRA Section 7, may find themselves with less ability to challenge union campaigns that may wind up cutting 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.
Related:
NLRB Considers Forcing Employers to Allow Union E-Mail Organizing
Board Defends Employer's Right to Restrict Employee E-Mail