Labor Board May Send New Message on Employee Email Rights

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By Lawrence E. Dubé

The NLRB shook the rafters in 2014 when it decided in Purple Communications Inc. that employees have the right to use an employer’s email system for union organizing and other federally protected activity.

The question now is when the Trump labor board will weigh in on the subject.

Purple Communications is tied up in a federal appeals court right now, but Bloomberg Law has identified at least one case that’s already on the National Labor Relations Board’s docket and could be used to reverse the agency’s position on email rights very soon.

Bloomberg Law analytics and NLRB docket information suggest that a pending case, Newmark Grubb Knight Frank, could well be the board’s vehicle for changing its policy.

“Newmark is as good an opportunity as any other case” to get the controversial email issue resolved, Howard E. Cole, a management lawyer and partner in Lewis Roca Rothgerber Christie LLP in Las Vegas, told Bloomberg Law.

When the board issued Purple Communications, employers and management lawyers scurried to rewrite employee handbooks and computer use policies, Cole said. If the board overrules the decision, “we’ll rewrite the policies again and limit employees’ use of email systems.”

The five-seat NLRB currently has a 2-2 split between Republicans and Democrats, with one vacant seat. But the board would gain a Republican majority this spring if the Senate confirms President Donald Trump’s nomination of labor lawyer John F. Ring to join the board.

The Senate Health, Education, Labor and Pensions Committee approved Ring’s nomination March 14, clearing the way for a full Senate vote within weeks.

Stephanie Dodge Gournis, a partner at Drinker Biddle & Reath in Chicago, told Bloomberg Law it’s “virtually certain” the board will act soon to turn the clock back on its view of employee email rights. But she said technological advances may have made Purple Communications less important than it was several years ago.

Email Rights Expanded

In Purple Communications, the issue before the board was whether the employer, which operates communications centers for deaf and hearing-impaired individuals, violated the rights of its employees by maintaining a computer use policy that prohibited them from using computer, internet, voicemail and email systems, and other company equipment for nonbusiness activities.

The NLRB had held as recently as 2007 that employees didn’t have a statutory right to use an employer’s email resources for union activity. But the 3-2 ruling in Purple Communications said that if an employer gives workers access to an email system for work functions, the board will presume employees have a right to use the system to send and receive messages about union activity or their mutual concerns about their employment.

The board’s Democratic majority in 2014 said an email system isn’t simply a piece of office equipment that an employer can control at will. Instead, the majority said that email had become “the predominant means of employee-to-employee communication” and deserved protection under the National Labor Relations Act.

The ruling drew blistering dissents from then-members Harry I. Johnson (R) and Philip A. Miscimarra (R).

Johnson said the board and the U.S. Supreme Court generally have followed a principle that “working time is for work,” which would be undermined by giving employees an enforceable right to use an email system for NLRA-protected activity.

One employee sending a single email could start a cascade of other messages, Johnson predicted. “It is,” Johnson warned, “extremely naive to believe that substantial amounts of work time, in the aggregate, will not now be spent on these communications—on a basis that is essentially unmonitorable by the employer.”

Miscimarra argued the NLRB didn’t have to, and shouldn’t, endorse employees’ use of employer computer systems for their own purposes. Employees have plenty of alternatives for communicating, he said.

Court Challenge Unresolved

Purple Communications has continued to fight the allegation that it illegally limited employee use of its email system.

The company petitioned for a federal court to vacate the NLRB’s decision, and the board petitioned for enforcement of its order.

Lawyers for the NLRB, Purple Communications, and the Communications Workers of America will argue the case this year before the U.S. Court of Appeals for the Ninth Circuit. Business groups including the National Association of Manufacturers and the National Federation of Independent Business have already filed briefs supporting the company and opposing what they see as the NLRB’s expansion of employee rights.

NLRB General Counsel Peter B. Robb (R) is defending the 2014 ruling in the Ninth Circuit proceeding, but that appears to be only because, as the board’s lawyer, he’s required to. Robb signaled shortly after he arrived at the agency that he favors the board reconsidering Purple Communications.

Path Open for Trump Board

Because Purple Communications is presently within the Ninth Circuit’s jurisdiction rather than the board’s, the NLRB would likely use a different case to overrule the 2014 endorsement of broad employee email rights.

That’s where Newmark likely comes in.

In Newmark, an NLRB administrative law judge said the real estate company allowed employees with access to its telecommunication and electronic communication resources to use voicemail and email systems “for business purposes only.”

That the policy violated the NLRA under Purple Communications , the ALJ said.

Newmark appealed and expressly asked the NLRB “to reverse its decision in Purple Communications and instead to reaffirm, consistent with decades of prior precedent … that employees do not have a statutory right to use their employer’s email systems” for NLRA-protected purposes.

Briefing of the Newmark case was completed in July 2017, and the case is ready for decision by the board. Attorneys involved in the case didn’t respond to a request for comment for this article.

Employers Wait for Action

Purple Communications meanwhile is “locked up” in the Ninth Circuit, where the timing of a court ruling is uncertain, according to Cole of Lewis Roca Rothgerber Christie. That will put pressure on the board to issue a decision on email rights quickly after John Ring’s confirmation, he said.

Cole said that Purple Communications changed the board’s analysis of email systems and it decided the case against the employer after engaging in a balancing of the company’s property rights and employees’ NLRA rights.

The lawyer said the decision was a major change and was part of what he called a “paradigm shift” of board policy by the Obama NLRB.

Tech Changes, Email Still Important at Start

The most effective union organizing is still personal, said Gournis of Drinker Biddle. Unions have looked for alternatives to email because they prefer to communicate with employees in secret, rather than on an employer’s email system, she said.

Many unions are setting up internet domains and password-protected websites that allow employees and union organizers to communicate without fear or employer surveillance or retaliation. They also use Facebook, Twitter, and private websites to secure their communications, said Gournis, who represents employers.

Still, she said, in-house email is an important communications link at the beginning of an organizing campaign, before union organizers have had a chance to obtain the personal email addresses and phone numbers of employees.

David Rosenfeld of Weinberg, Roger & Rosenfeld in Alameda, Calif., represents the Communications Workers in the pending Ninth Circuit review of Purple Communications. Supporting the NLRB’s finding that employees should be given access to email systems, he acknowledged the employer’s argument that employees have phones, devices, and personal accounts that may let them bypass company email systems. But he said the NLRB has never held that the availability of such alternative channels means an employer can limit employee communications in the workplace.

A Ninth Circuit decision in Purple Communications is expected later this year. Labor board action on the email issue is expected within the next several months.

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