Purple Communications, Inc.,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Purple Communications, Inc. and Communications Workers of America, AFL–CIO. Cases 21–CA– 095151, 21–RC–091531, and 21–RC–091584

March 24, 2017 SUPPLEMENTAL DECISION AND ORDER BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On March 16, 2015, Administrative Law Judge Paul Bogas issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and Charging Party each filed answering briefs. The Charging Party also filed a reply to the General Counsel’s answering brief. The Charging Party filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Purple Communications, Inc., Corona and Long Beach, California, its officers,

1 In its initial decision in this case, Purple Communications, Inc., 361 NLRB No. 126 (2014) (Purple I), the Board partially overruled Register Guard, 351 NLRB 1110 (2007), enfd. in part and remanded in part 571 F.3d 53 (D.C. Cir. 2009), and held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” 361 NLRB No. 126, slip op. at 1. The Board further held that “[a]n employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” Id., slip op. at 14. The Board remanded the proceeding to the judge to “allow[] the parties to introduce evidence relevant to a determination of the lawfulness of the Respondent’s electronic communications policy” under the Board’s new standard. Id., slip op. at 17. On remand, the Respondent notified the judge that it would not contend that special circumstances exist justifying its electronic communications policy. The judge issued the attached supplemental decision, finding that the Respondent had not rebutted the presumption that its policy is unlawful. On exceptions, the Respondent concedes that it did not show special circumstances justifying its policy but contends that Purple I was wrongly decided and should be reconsidered. Our dissenting colleague finds merit in those exceptions. We reject his position for the reasons stated in the majority decision in Purple I. Id., slip op. at 6 fn. 18, 14–15 fn. 71. See also Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38, slip op. at 1 fn. 3 (2017).

agents, successors, and assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. March 24, 2017

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

ACTING CHAIRMAN MISCIMARRA, dissenting.

Again before the Board is the issue whether the Respondent’s Internet, Intranet, Voicemail, and Electronic Communications Policy (Policy) is lawful under the National Labor Relations Act (NLRA). In its prior decision in this case, a Board majority, overruling in relevant part Register Guard, 351 NLRB 1110 (2007),1 held that if employees have been granted access to their employer’s email system for work-related purposes, the Board will presume that they have a right to use that email system to engage in NLRA-protected communications on nonworking time, unless the employer demonstrates that special circumstances warrant restricting that presumptive right.2 The majority in Purple Communications I remanded the case to the administrative law judge to give Respondent an opportunity to demonstrate special circumstances. On remand, the Respondent notified the judge that it would not mount a special circumstances defense. The judge then issued a supplemental decision, finding that the Respondent had not rebutted the presumption that its Policy is unlawful. On exceptions, the Respondent concedes the issue of special circumstances but contends that Purple Communications I was wrongly decided and should be reconsidered.

I find merit in the Respondent’s exceptions. As I explained in my dissenting opinion in Purple Communications I, I believe the standard adopted by the Board majority in that decision is incorrect and unworkable.

 The Purple Communications standard improperly presumes that when an employer reserves the use of its email system for business purposes, this unreasonably impedes employees’ NLRA-

1 Enfd. in relevant part and remanded sub nom. Register Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

2 Purple Communications, Inc., 361 NLRB No. 126, slip op. at 11– 16 (2014) (Purple Communications I).

365 NLRB No. 50

2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

protected activities.3 Far from balancing the “undisputed right of self-organization assured to employees” with “the equally undisputed right of employers to maintain discipline in their establishments,”4 the Board in Purple Communications I assumed that restricting an employer’s email system to business-related uses constitutes “an unreasonable impediment to selforganization,”5 notwithstanding the widespread availability of multiple digital platforms (e.g., social media, text messaging, and personal email accounts)—not to mention old-fashioned face-to-face conversation—through which employees may engage in NLRA-protected communications separate and apart from their employer’s email system.

 The Purple Communications standard fails to accommodate employers’ property rights in their information technology resources, which typically cost a great deal to acquire, maintain, and secure.6

 The Purple Communications standard makes it enormously difficult for employers to enforce a valid rule prohibiting solicitation during working time, where, by the very nature of emails, it is likely that an email sent during one employee’s nonworking time will be received and read by employees during their working time. The Purple Communications standard also makes it extremely difficult for employers to avoid unlawful surveillance of NLRA-protected activities, even though employers often have legitimate reasons to search and retrieve employee work emails.7

 The Purple Communications standard, which gives employees a presumptive right to use their employer’s email system for NLRA-protected communications and places the burden on the employer to demonstrate “special circumstances” warranting restricting that right, fails to give employers and employees “certainty beforehand”8 concerning what they may and may not do, since what qualifies as a “special circumstance” will only be determined after the fact and case by case,

3 Id., slip op. at 20–22 (Member Miscimarra, dissenting).

4 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798 (1945).

5 Id. at 803 fn. 10.

6 Purple Communications I, supra, slip op. at 22–24 (Member Miscimarra, dissenting).

7 Id., slip op. at 24–26 (Member Miscimarra, dissenting).

8 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679 (1981).

following potentially years of Board and court litigation.9

For the above reasons, I believe Purple Communications I was wrongly decided, and I would return to the rule of Register Guard that employers may lawfully control the uses of their email systems, provided they do not discriminate against NLRA-protected communications by distinguishing between permitted and prohibited uses along Section 7 lines.10 It is undisputed that the Respondent’s Policy is lawful under Register Guard, and I would so find. In addition, although Register Guard dealt specifically with an employer’s policy regarding use of its email system, the Board in Register Guard relied on cases in which it more broadly held that there is “no statutory right . . . to use an employer’s equipment or media.”11 I agree with this rationale, and I would apply the holding of Register Guard not just to employerprovided email systems, but to employers’ information technology equipment and resources generally.

Accordingly, for these reasons, I respectfully dissent.

Dated, Washington, D.C. March 22, 2017

______________________________________

Philip A. Miscimarra, Acting Chairman

NATIONAL LABOR RELATIONS BOARD

Cecelia Valentine, Esq., for the General Counsel.

Robert J. Kane, Esq. (Stradling, Yocca, Carlson & Rauth), of

Newport Beach, California, for the Employer.

Lisl R. Duncan, Esq. (Weinberg, Roger & Rosenfeld), of Los

Angeles, California, and David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), of Alameda, California, for the Charging Party.

9 Purple Communications I, supra, slip op. at 27–28 (Member Miscimarra, dissenting).

10 Register Guard, 351 NLRB at 1114–1116.

11 Mid-Mountain Foods, 332 NLRB 229, 230 (2000), enfd. 269 F.3d 1075 (D.C. Cir. 2001). See also Eaton Technologies, 322 NLRB 848, 853 (1997) (“It is well established that there is no statutory right of employees or a union to use an employer’s bulletin board.”); Champion International Corp., 303 NLRB 102, 109 (1991) (stating that an employer has “a basic right to regulate and restrict employee use of company property” such as a copy machine); Churchill’s Supermarkets, 285 NLRB 138, 155 (1987) (“[A]n employer ha[s] every right to restrict the use of company telephones to business-related conversations

. . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988), cert. denied 490...

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