Review of NLRB Union Email Rule Suspended by Ninth Circuit

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By Robert Iafolla

A federal appeals court canceled at the request of the National Labor Relations Board the Oct. 9 oral argument for a pair of labor law cases involving employee use of work email for unionizing.

The U.S. Court of Appeals for the Ninth Circuit agreed Sept. 24 to suspend proceedings in two separate employer challenges to the NLRB’s 2014 decision in Purple Communications, which granted workers the right to use company email for organizing purposes. Those challenges were filed by Verizon Communications Inc. subsidiary Verizon Wireless and closed-caption provider Purple Communications Inc.

The NLRB asked the court earlier this month to pause those cases until the board rules in Caesars Entertainment, a case involving a Las Vegas casino. That case could lead to reversal of the Obama-era Purple Communications ruling, as the board now is controlled by three Trump administration appointees.

The NLRB general counsel’s office urged the board in a Sept. 14 brief to find that workers don’t have a legal right to use work email for unionizing and to find that employers have the power to restrict email use as long as the limitations aren’t discriminatory.

Business groups have been keenly interested in the legal rules for workplace email use. The U.S. Chamber of Commerce, the National Association of Manufacturers, and other industry groups filed briefs with the Ninth Circuit backing both Verizon Wireless and Purple Communications.

Briefs from outside commenters weighing in on the NLRB’s Caesars Entertainment case are due Oct. 5.

The cases are Purple Communications v. NLRB, 9th Cir. App., 17-71062, order granting motion to stay and abey 9/24/18 and Cellco Partnership d/b/a Verizon Wireless v. NLRB, 9th Cir. App., 17-71493, order granting motion to stay and abey 9/24/18.

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