As reported in prior blogs, the National Labor Relations Board (NLRB) has become increasingly active in attacking employer policies on the grounds that those policies chill employees’ rights to engage in concerted activity. In particular, the NLRB has been scrutinizing social media policies. For other Orrick blog posts on this topic see our postings from May 2013 and September 2012.
Nevertheless, the Bush-era NLRB Register-Guard opinion, which held that employers can restrict employees’ use of work computer systems for union solicitation purposes, still stands. Labor has been highly critical of Register-Guard, and given the current labor-friendly composition of the NLRB, the decision is considered by many to be ripe for reversal. Now, with a recent ALJ decision in Purple Communications, stage might be set for the Board to reconsider the Register-Guard rule.
After a vote to unionize failed at two California Purple Communications call center facilities, two company policies came under fire.
The first policy threatened disciplinary action, up to and including termination of employment, for “causing, creating, or participating in a disruption of any kind during working hours on company property.” Although the ALJ found that this policy did not expressly restrict employees’ right to engaging in union or concerted activity under Section 7 of the NLRA, he found that the policy violated Section 7 because it could be reasonably be interpreted by employees to outlaw Section 7 activity. The policy’s failure to define the term “disruption” rendered it over-broad and unlawful.
The second policy at issue related to electronic communications and restricted the use of company equipment (laptops, Internet access, voicemail, etc.) to “business purposes only.” The policy “strictly prohibited” employees from using the “computer, Internet, voicemail and email systems […] in connection with […] engaging in activities on behalf of organization[s] or persons with no professional or business affiliation with the Company [and] sending uninvited email of a personal nature.”
Purple Communications claimed that the reason for prohibiting personal use of workstation computers was to prevent computer viruses from affecting the call center. The union, unsurprisingly, contended that this policy was over-broad and interfered with employees’ exercise of Section 7 rights.
In challenging this policy, the general counsel for the NLRB had to concede that the company policy—as written—complied with the holding in Register-Guard. But, parroting the arguments of the Register-Guard dissent, the general counsel argued that e-mail has become increasingly important as a means of communication, and that Register-Guard should be overruled. The ALJ refused to consider the merits of that argument, since the NLRB has not overturned Register-Guard. Accordingly, the ALJ held that the company’s rule prohibiting the use of company equipment for anything but business purposes did not violate the NLRA. However, if either party chooses to file exceptions to this order, this Purple Communications case might give the NLRB a chance to articulate a new standard for work e-mail use.
The take-home point? Since the NLRA applies to all non-supervisory employees, even non-unionized employers should consider tailoring any policies that broadly proscribe “disruption” in the workplace. Employers should also watch out for further developments at this intersection of e-mail and concerted activity. With the recent confirmation of Richard F. Griffin Jr. as the general counsel of the NLRB, it is anticipated that the NLRB’s expansive view of Section 7 rights will only expand further.