The National Labor Relations Board is often criticized on two fronts—frequent changes in policy direction and ignoring workplace realities. In its recent decision on employee use of employer–provided email to discuss union issues, the board unfortunately has stayed true to form.
First, as one of us described decades ago, is the NLRB’s penchant to engage in “policy oscillation,” whereby the agency makes repeated 180-degree turns in dealing with certain polices depending on the political party occupying the White House. Second, is the NLRB’s lethargic response to changes in workplace realities, earning it the moniker of “the Rip Van Winkle of administrative agencies” from the Seventh Circuit.
In Caesars Entertainment, 368 NLRB No. 143 (2019), the Trump board voted 3-1 to overrule the Obama board’s 2014 (3-2) decision in Purple Communications, 361 NLRB No. 126 (2014), which in turn had overruled the Bush board’s 2007 (3-2) decision in Register Guard. 351 NLRB No. 70 (2007).
This may be no way to run a railroad but it is how this agency does business.
Using Employee Emails for Union Matters
For a five-year period since Purple Communications, employees could make reasonable use of their company’s email system to communicate with fellow workers on union and other organizational matters without fear of employer discipline or undue restriction. Such access was presumed protected by Section 7 of the National Labor Relations Act, a 1935 law administered by the NLRB. The presumption could be overcome by an employer showing of special circumstances implicating a legitimate interest in safety, production, or discipline.
The basic reasoning behind Purple Communications was that as the U.S. Supreme Court long ago recognized in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), employees’ Section 7 right to engage in concerted activities in support of union organization and self-organization includes a right to be able to discuss their wages, working conditions, and interest in collective organization with co-workers at the employer’s premises.
Such solicitation could occur in work and nonwork areas but only during nonwork time; if distribution of literature was involved, it could be restricted to nonwork areas. The right of access thus extended to the cafeteria, water cooler, break rooms, and other nonwork areas and could not be restricted by the employer absent special circumstances.
What Purple Communications did was to extend this presumption of access to the company’s email system. The email system was likened to the water cooler or break room, not to employer-provided equipment like telephones and Xerox machines where the NLRB generally has ruled access could be denied to employees engaged in union solicitation. Union access to such equipment would entail additional costs to the employer, who was not required by law to subsidize union activity.
Now, the NLRB has flipped that presumption and reverted to the 2007 Register Guard approach, barring employee access to email for Section 7 communications, “except in those rare cases where an employer’s email system furnishes the only reasonable means for employees” to communicate with one another. To arrive at this holding, the board departs from longstanding interpretations of controlling Supreme Court precedent.
The Supreme Court, in Eastex Inc. v. NLRB (1978), expressly rejected an argument strikingly similar to the one adopted by the NLRB in Caesars Entertainment—namely, that Section 7 communications taking place on company property “would be an unnecessary intrusion on employer’s property rights in the absence of a showing by employees that no alternative channels of communication with fellow employees are available.”
This difference—between an employer’s property rights against nonemployees versus its strictly management interests in regard to employees rightfully on company property— is the “difference of substance” established by the Supreme Court in a number of rulings in addition to Eastex, including Hudgens v. NLRB, 424 U.S. 507 (1976); Central Hardware Co. v NLRB, 407 U.S. 539 (1972); Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978).
It is this difference that requires an employer to show that its management interests have been impeded to justify a rule restricting employees’ Section 7 communications, whereas in in the case of union or other nonemployee access, the union must show that no other reasonable avenues of communication with employees exist. In Caesars Entertainment, the NLRB essentially dissolves this difference.
The NLRB attempts, in the final analysis, to distinguish email communications from on-site communications between employees plainly protected by Republic Aviation on the ground that the latter involves “face-to-face Section 7 activity within a physical workplace.”
This is a distinction without meaning and without support in the Supreme Court decisions, as it ignores distribution of organization literature (the very subject of the Eastex ruling) and the wearing of union buttons and other insignia (the very subject of Republic Aviation). The fact that face-to-face communications may not be occurring does not, standing alone, present “special circumstances” implicating interests in discipline or production that might justify a broader ban.
Employee use of email can be abused. No evidence, however, of unworkability or union abuse under prior NLRB law was presented in Caesars Entertainment. Rather, the board states flatly that email is not “an indispensable tool for communications.”
This is beside the point because under Republic Aviation and its progeny, employees do not have to show that access to the cafeteria or break room or email is “indispensable”. It would plainly be useful for employee communications and could not be barred absent “special circumstances” not shown by the employer in this case.
Reversals Lead to Instability
The NLRB’s decision in Caesars Entertainment is concerning for reasons besides its failure to adhere to controlling Supreme Court precedent. It is yet another example of a retroactive policy reversal effected through NLRB adjudication. Whether one views the Caesars Entertainment decision favorably or not, it will almost certainly be temporary—reversed, again, when there is a change in party in the White House.
The NLRB’s use of adjudication to announce new rules, and reverse old ones, has led to instability in the law and a lack of respect for the board’s decisions in the nation’s courts.
For Judge Henry Friendly, in his time the country’s leading judicial voice on administrative law, one partial solution was to require rulemaking where the NLRB seeks to announce a policy reversal, especially where reliance interests are significant. Yet, while rulemaking may better protect reliance interests, here we have the opposite problem. With so few years between NLRB reversals, no one—employers and employees alike—can reasonably rely on a board ruling dealing with important policy issues.
Case in point: the initial Caesars Entertainment complaint was first adjudicated under the Register Guard standard in 2012, then remanded by the NLRB under the Purple Communications standard in 2015, before becoming the vehicle for another board policy reversal in Caesars Entertainment in 2019. For the earning potential of labor lawyers, this is a blessing; for the administration of labor law, it is dysfunction.
Though rulemaking in the case of policy reversals cannot be required of the NLRB without statutory change, Judge Friendly’s concerns for the stability and legitimacy of labor law through considered policymaking remain valid.
Going forward, the NLRB would be well-advised to use rulemaking as the exclusive vehicle for the board to accomplish policy reversals and to do so only when experience truly shows there is a need to change course.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Samuel Estreicher is the Dwight D. Opperman Professor of Law at New York University School of Law and the director of the School’s Center for Labor and Employment Law.
Christopher S. Owens is a third-year law student at NYU.