Am I Blue or Seeing Red? The NLRB Sees Purple When Employer Communication Policies Unduly Restrict Section 7 Activities

Abstract

This paper analyzes the National Labor Relations Board’s recent Purple Communications decision. There, the Obama Board found Purple Communication’s restrictions on employee use of its email system violated the National Labor Relations Act as employees were authorized to use the employer email system for work purposes but prohibited from using the email for concerted activities on nonworking time. The Purple Communications ruling has broad significance for employer email policies in the private sector because Section 7 of the NLRA protects employee rights to engage in concerted activity whether employees are unionized or not. The decision specifically overturned the Bush Board’s 2007 holding in Register Guard that employer property rights took precedence over employee Section 7 rights to communicate on employer email systems. This paper evaluates the parameters and implications of the Board’s recent decision on email, including the concerns raised by the dissenters regarding the application of the Board's rebuttable presumption. Practical solutions are recommended.

Keywords: National Labor Relations Board, Section 7 rights, National Labor Relations Act, employer email and social media rules, email, protected concerted activities, unfair labor practice, nonunion environment

JEL Classification: J23, J24, J38, J41, J50, J53, J58, J71, K31, K42, L52