Bans on taking photos at work are addressed in the NLRB report.
Bans on taking photos at work are addressed in the NLRB report.

The NLRB’s General Counsel’s office today released a lengthy report “concerning recent employer rule” cases.

That sounds generic. It’s not.

Rather, the NLRB is now outlining its views on otherwise-neutral employer policies and whether they could be deemed to

The NLRB, right now, is union-friendly. We know it. Employers know it. Politicians know it. The unions know it.

It’s stacked 3-2 with Democrat appointees so the NLRB taking its training wheels off and is doing what it has always done. It has shifted its decisions based on the politics.

Yesterday represented just the latest in a long line of decisions where the NLRB has suddenly “seen the light” from a prior decision and overrules itself without much real logic.

It’s not right or wrong. This is just how the NLRB works. When Republicans controlled the Board, it did the same thing.

The NLRB rewrites its decisions. And creates fantastical changes with the use of a crayon (or pen, or keyboard) — just like that childhood story about Harold.

So, yesterday’s decision in Purple Communications, Inc. regarding the usage of an employer’s e-mail system should come as no surprise (and won’t be if you attended my firm’s Labor & Employment seminar in October where we talked about this case coming down just like this.)

I asked one of our labor gurus and a frequent blog contributor Jarad Lucan, to first recap what is going on.  He talked about this case at our October seminar:

Oh, 2007. Those were the days for employers.

The Sopranos made their exit. The last Harry Potter was released.

And the NLRB issues the Register Guard decision (see Dan’s post from way back then).  

The decision said that employees had no rights under labor law to use an employer’s email system, let alone to use it for statutorily protected communications, such as union organization efforts, as long as the restrictions placed on the email system by the employer were nondiscriminatory. 

According to the Board:

Nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.   That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. 

Yesterday, a divided Board overruled Register Guard declaring that it was incorrectly decided.  

In its Purple Communications Inc. case, the Board 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 system.” 

Put differently, if an employer has allowed its employees to use its email system for non-work related  reasons (i.e., incidental personal use), then an employer must also allow those employees to use its email system for communications protected under the Act, such as communications about union organization efforts or the scheduling of solidarity marches to protest the employer’s conduct. 


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Let’s try something a little new today: I’ll give you some facts and see if you can pick the result that a court or agency found. (Hat tip to Overlawyered for highlighting some of these issues.)  I’ll give you the lesson learned from these cases at the end.

Used Car Salesman Loses Temper

1.  Nick is hired in late August 2008 as a used car salesman (really).  On the first day on the job, Nick worked in a tent sale and inquired about the bathroom facilities.  The manager responded that it was in the store.  The next week, when he asked if he could use the bathroom during tent sales, the manager responded “you’re always on break buddy … you just wait for customers all day”.  He told Nick that he could leave if he did not like the employer’s policies.  During the next tent sale, he asked other salespeople about the compensation policy. He also raised the issue of bathroom breaks as well.

At another tent sale (apparently, tent sales are very popular), Nick asked his manager about the commissions for a vehicle and thought the employer was stealing money from him in calculating his commissions.  He then went to the state’s wage & hour agency to obtain more information about commission-based payments.

By October 2008, his manager met with Nick in private office saying that he had no intention of firing Nick but that he was “talking a lot of negative stuff” and asking too many questions.  The manager also said that if Nick did not trust the employer, he didn’t need to work there.  Nick then lost his temper calling the manager a “f–ing mother f–ing”, a “f—ing crook” and an “a–hole.”  Nick also told the manager he was “stupid” and stood up, pushed his chair aside and told the manager that if he was fired, the manager would regret it.

Nick is then fired and brings a claim against his employer.

Will Nick win his claim?

a) No, yelling at his boss is “obscene and denigrating” and thus grounds to fire the employee, even if he did engage in some “protected” activity.

b) No, while he made threats against his boss, they were empty words and he did not engage in “protected” actvity anyways because mere discussions regarding compensation are not covered.

c) Yes, because Nick’s outburst was not menacing, physically aggressive or belligerent and he engaged in “protected” activity.

d) Yes, because the right to use a bathroom is protected under state law and Nick was right to be upset that his use was restricted.


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I sound like a broken record, but once again, the NLRB is striking down reasonable rules as unreasonable. 

My colleague, Gary Starr (as always, read his bio here), today shares a recent case from the NLRB that found that a “Values and Standards of Behavior Policy” of one employer — something that you might think

As I indicated a few weeks ago, one of the goals of this blog this year is to stop chasing headlines.   The latest story about the NLRB demonstrates why.

Photo courtesy of Library of Congress circa 1947

Late last month, the D.C. Circuit Court of Appeals (which, as you might imagine, only covers Washington D.C.) ruled that recess appointments to the NLRB were invalid, calling into question dozens of decisions by the NLRB.  The case, Canning v. NLRB, is not a light read; it’s nearly 50 pages long. 

(As an aside, this recess decision should not be confused with the Connecticut General Assembly’s attempt to have labor law taught in the schools, presumably after recess.)

Unfortunately, the first instinct of some employment law blogs was to treat this decision as some type of watershed moment in history without providing the context for private employers — particularly those without unions. 

A notable exception was a thoughtful post by the Employer Law Report which was quick to note that “since the various appeals courts are not bound to adopt each other’s opinions, the impact will depend on where the NLRB’s decisions are being challenged and how those courts rule.” 

For employers in Connecticut — which falls within the Second Circuit Court of Appeals, and not the D.C. Circuit — that means that the decision is notable, but not yet binding.
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