NLRB Sidesteps Register-Guard; Still Orders New Elections in Purple Communications

Late last week, the NLRB issued its highly anticipated decision in Purple Communications, 21-CA-095151, which many NLRB observers believed would re-visit whether or not employers may prohibit their employees from using company equipment, especially e-mail, for non-business purposes. The Board saved that issue for another day, but its ruling still provides important lessons to employers.

Purple Communications provides communication services for hearing-impaired individuals. In 2012, the Communications Workers of America (CWA) filed petitions for elections at Purple’s facilities in Long Beach and Corona, California. The CWA lost both elections, but filed objections with the Board. The CWA also filed unfair labor practice (ULP) charges against Purple related to certain provisions in its employee handbook.

The handbook limited the use of all company technology, including computers, laptops and e-mail, to business purposes only. In April, the Board invited parties and amicus curiae to submit briefs addressing whether the Board should overturn its decision in Register-Guard, 351 NLRB 1110 (2007). In Register Guard, the Board held that employees have no statutory right to use their employer’s e-mail for union organizing. Despite its invitation for briefing, the Board side-stepped the issue and reserved for future consideration Purple’s company technology policy.

Purple’s handbook also contained a provision that prohibited employees from “causing, creating, or participating in a disruption of any kind during working hours on Company property.” The administrative law judge (ALJ) found that Purple’s prohibition of “disruptions” violated Section 8(a)(1) of the National Labor Relations Act (NLRA) in that it was overly broad and would discourage reasonable employees from engaging in protected activities. However, the ALJ also found that the maintenance of this rule alone was not enough to overturn the results of an election. While certain employer statements at the Long Beach facility warranted a new election, no unlawful statements were made at Corona. At Corona, the rule was only “on the books,” the election was not close (the Union lost 16-10), and there was no evidence Purple enforced the rule. Therefore, the ALJ did not order a new election at Corona, finding the rule itself was “de minimis” misconduct.

The Board disagreed, set aside the results of the Corona vote, and ordered a new election. The Board specifically rejected the ALJ’s conclusion that Purple’s “no disruptions” policy, standing alone, was insufficient to require new elections. The Board found the “extraordinary breadth [of the rule] could have discouraged [employees] from engaging in many types of permissible campaigning.” Additionally, the Board applied a completely different standard than the ALJ in examining the policy, and held an election must be set aside where an employer maintains an overbroad rule unless it is “virtually impossible to conclude the misconduct could have affected the election results.”

For the past several years, the NLRB has put employer handbooks and work rules under its microscope. Purple Communications is another reminder that even an unenforced work rule can create legal risks for employers. 

Patrick M. DePoy
pmd@franczek.com
312.786.6547

Source: Franczek Radelet Attorneys & Counselors