Barbara Cope, a Sole Proprietor

NOTICE: This opinion is subject to formal revision before publication in the correct. The consequences of that error are too serious to bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. permit it to stand. By focusing too much on employers’ 20570, of any typographical or other formal errors so that corrections can property rights and too little on the importance of email be included in the bound volumes. as a means of workplace communication, the Board Purple Communications, Inc. and Communications failed to adequately protect employees’ rights under the Workers of America, AFL–CIO. Cases 21–CA– Act and abdicated its responsibility “to adapt the Act to 095151, 21–RC–091531, and 21–RC–091584 the changing patterns of industrial life.”6 December 11, 2014 Our decision is carefully limited. In accordance with DECISION AND ORDER REMANDING longstanding Board and Supreme Court precedent, it seeks to accommodate employees’ Section 7 rights to BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA, communicate and the legitimate interests of their em- HIROZAWA, JOHNSON, AND SCHIFFER 7 ployers. First, it applies only to employees who have At issue in this case is the right of employees under already been granted access to the employer’s email sys- Section 7 of the National Labor Relations Act to effec- tem in the course of their work and does not require em- tively communicate with one another at work regarding ployers to provide such access. Second, an employer self-organization and other terms and conditions of em- may justify a total ban on nonwork use of email, includ- 1 ployment. The workplace is “uniquely appropriate” and ing Section 7 use on nonworking time, by demonstrating 2 “the natural gathering place” for such communications, that special circumstances make the ban necessary to and the use of email as a common form of workplace maintain production or discipline. Absent justification communication has expanded dramatically in recent for a total ban, the employer may apply uniform and con- years. Consistent with the purposes and policies of the sistently enforced controls over its email system to the Act and our obligation to accommodate the competing extent such controls are necessary to maintain production rights of employers and employees, we decide today that and discipline. Finally, we do not address email access employee use of email for statutorily protected commu- by nonemployees, nor do we address any other type of nications on nonworking time must presumptively be electronic communications systems, as neither issue is permitted by employers who have chosen to give em- raised in this case. ployees access to their email systems. We therefore I. PROCEDURAL HISTORY overrule the Board’s divided 2007 decision in Register 3 On October 24, 2013, Administrative Law Judge Paul Guard to the extent it holds that employees can have no 8 statutory right to use their employer’s email systems for Bogas issued the attached decision. The Respond- Section 7 purposes.4 We believe, as scholars have point- 5 Labor Relations Act Reached a Turning Point?, 9 Nev. L.J. 247, 252 ed out, that the Register Guard analysis was clearly in- (2009) (Register Guard “elevated employers’ property interests over employees’ rights, and interpreted the NLRA in a restrictive way that 1 Employees’ exercise of their Sec. 7 rights “necessarily encom- threatens to make it irrelevant and obsolescent”); Christine Neylon passes the right effectively to communicate with one another regarding O'Brien, Employees On Guard: Employer Policies Restrict NLRA- self-organization at the jobsite.” Beth Israel Hospital v. NLRB, 437 Protected Concerted Activities On E-Mail, 88 Ore. L. Rev. 195, 222 U.S. 483, 491–492 (1978). (2009) (Register Guard’s “overemphasis on the employer’s property 2 NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322, 325 (1974); interests at the expense of the employees’ section 7 rights undermines Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978); Beth Israel, 437 U.S. the credibility of the majority opinion”); Dube, Law Professors Speak- at 505. ing at ABA Conference Criticize NLRB’s Register-Guard Decision, 3 Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and BNA Daily Labor Report (May 6, 2008). remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 6 Hudgens v. NLRB, 424 U.S. 507, 523 (1976) (citing NLRB v. J. 2009). Weingarten, Inc., 420 U.S. 251, 266 (1975)). 4 The Respondent maintained an electronic communications policy 7 Hudgens v. NLRB, 424 U.S. at 521 (“Accommodation between limiting employee use of its email and other electronic systems to employees’ § 7 rights and employers’ property rights . ‘must be “business purposes only” and “specifically prohibit[ing]” certain uses obtained with as little destruction of one as is consistent with the by employees. Acknowledging that the Respondent’s policy comports maintenance of the other’”) (quoting NLRB v. Babcock & Wilcox Co., with current law, the General Counsel and the Charging Party ask the 351 U.S. 105, 112 (1956)). See also Republic Aviation, 324 U.S. 793, Board to overrule Register Guard and find that the Respondent’s policy 803 fn. 10 (1945) (quoting Peyton Packing Co., 49 NLRB 828, 843– violates the Act. 844 (1943)). 5 See, e.g., Jeffrey M. Hirsch, Communication Breakdown: Reviving 8 The judge’s decision addressed the lawfulness not only of the elec- the Role of Discourse in the Regulation of Employee Collective Action, tronic communications policy but also of a handbook rule prohibiting 44 U.C. Davis L. Rev. 1091, 1151 (2011) (“[T]he regulation of work- employees from “[c]ausing, creating or participating in a disruption of place discourse has become so far adrift that the NLRB now views e- any kind during working hours on Company property.” In addition, the mail as an affront to employer interests, rather than a low-cost, effec- judge addressed objections to elections at two of the Respondent’s tive means for employees to exercise their right to collective action.”); facilities based on the no-disruptions rule, the electronic communica- William R. Corbett, Awakening Rip Van Winkle: Has the National tions policy, and various statements made by the Respondent’s presi- 361 NLRB No. 126 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent/Employer filed exceptions and a supporting brief, and The Board has considered the decision and the record the General Counsel filed an answering brief. In addi- in light of the exceptions and briefs and has decided to tion, the General Counsel filed limited exceptions and a affirm the judge’s rulings, findings, and conclusions only supporting brief, the Union filed cross-exceptions and a to the extent consistent with this Decision and Order. supporting brief, and the Respondent/Employer filed an We remand the issue to the judge for him to reopen the answering brief to each. record and afford the parties an opportunity to present On April 30, 2014, the National Labor Relations Board evidence relevant to the standard we adopt today, and for issued a notice and invitation to the parties and interested the judge to prepare a supplemental decision containing amici curiae to file briefs. The notice requested that the findings of fact, conclusions of law, and a recommended parties and amici address specific questions concerning Order, consistent with this Decision and Order. employees’ use of their employer’s email and other elec- II. FACTS tronic communications systems for the purpose of com- The Respondent provides sign-language interpretation municating with other employees about union or other services. Its employees, known as video relay interpret- Section 7 matters. The Board’s questions included the ers, provide two-way, real-time interpretation of tele- following: phone communications between deaf or hard-of-hearing whether the Board should reconsider its conclu- individuals and hearing individuals. The interpreters sion in Register Guard that employees do not have typically use an audio headset to communicate orally a right to use their employer’s email systems (or with the hearing participant on a call, leaving their hands other electronic communications systems) for Sec- free to communicate in sign language, via video, with the tion 7 purposes; deaf participant. The interpreters work at 16 call centers that process calls on a nationwide, around-the-clock, what standard should apply if the Board were to “first come, first served” basis. overrule Register Guard and what restrictions Since June 2012, the Respondent has maintained an could employers then place on employee access; employee handbook that contains its electronic commu- to what extent and how the impact of employees’ nications policy. That policy states: use of electronic communications technology on the employer should affect the issue; INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY what effect employees’ personal electronic de- vices, social media accounts, and personal email Computers, laptops, internet access, voicemail, elec- accounts should have on the balance between em- tronic mail (email), Blackberry, cellular telephones ployees’ and employers’ rights; and and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company what technological issues the Board should con- business. All information and messages stored, sent, sider, including changes since the Register Guard and received on these systems are the sole and exclu- decision. sive property of the Company, regardless of the author The Board also requested that parties and amici submit em- or recipient. All such equipment and access should be pirical and other evidence. The General Counsel, the used for business purposes only. Charging Party, the Respondent, and various amici filed . briefs in response to the Board’s notice.9 Prohibited activities dent/CEO.

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