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Crossed Wires: Outdated Perceptions of Electronic Communications in the NLRB's Purple Communications Decision

Publication Title

Washington University Law Review

Abstract

The National Labor Relations Board (the NLRB or the Board) has recently emphasized the need to adjust to the rapid pace of change in modern society.1 The recognition of employees’ right to use employer-owned email systems for protected activities in its December 2014 Purple Communications decision purported to establish a central pillar of this effort.2 Purple Communications reversed the NLRB’s 2007 Register Guard holding that employees do not have the right to use employer-owned electronic resources for protected activities.3 However, the Board’s rationale in Purple Communications reflected an understanding of electronic resources that was more suited to 2007 than to the lives of workers in late 2014. Consequently, an attempt to demonstrate adaptability resulted in a failure to respond to changed circumstances. Part I of this Note describes the NLRB’s role in protecting collective action in the workplace, as well as its responsibility to adapt its standards to changing social, economic, and technological circumstances. Part II explains that the tension between employees’ collective action rights and employers’ property rights represents one of the fundamental balancing acts the Board must perform as circumstances change. Next, Part III examines how the Board has performed that balancing act in the context of email, including its 2007 Register Guard and 2014 Purple Communications decisions. Part IV demonstrates that workers’ utilizations of diverse electronic communications platforms grew significantly between 2007 and 2014. Part V argues that those changes should have factored into the Board’s analysis in Purple Communications.

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