On April 30, 2014, the panel (Board) heading the NLRB's judicial functions invited the parties and interested amici to file briefs in Purple Communications, Inc., 21-CA-095151 to answer the question of whether the Board should reconsider or overrule its conclusion in Guard Publishing, 351 N.L.R.B. 1110 (2007) (Register Guard), that employees have no statutory right to use their employers' electronic communications systems for Section 7 purposes.

On October 24, 2013, an NLRB Administrative Law Judge (ALJ) issued a decision in Purple Communications, Inc. dismissing the allegation that the employer violated Section 8(a)(1) of the NLRA by maintaining a policy prohibiting its employees' personal use of its electronic equipment and systems. In issuing its decision, the ALJ relied on Register Guard in which the Board held that employees have no statutory right to use their employers' email system for Section 7 purposes.

The NLRB's General Counsel and the charging Party asked the Board to overrule Register Guard and adopt a rule that employees permitted to use their employers' email for work purposes are entitled to use it for Section 7 activity as long as production and discipline are maintained.

The Board invites the parties and interested amici to file briefs and submit evidence to assist it in addressing the following questions:

Parties and amici should file briefs by June 16, 2014. Briefs must be filed electronically using the NLRB E-Filing System and must not exceed 25 pages.

In recent years, the Board’s Chairman (with majority support) has suggested that the Board would overturn Register Guard at the soonest appropriate opportunity (see Legal Updates, Unfazed by Ruling on Recess Appointments, NLRB Condemns Employer's Restrictions on Unapproved Communications with Media, Law Enforcement and Acquiring Nursing Home Operator Forfeits Right to Set Initial Terms and Conditions of Employment: NLRB). Similarly, the Office of the NLRB’s General Counsel in advice memoranda has instructed what it perceives are the potential NLRA implications of the Board overturning Register Guard on other employment policies (see Legal Update, NLRB General Counsel's Office Pans Electronic Communications and Social Media Policies; Notes Implications if Register Guard is Overturned). However, overturning Register Guard would have significant implications beyond updating policies for NLRA compliance. If employees have the statutory right to engage in Section 7 activity on company email systems (and other electronic communications systems and equipment), that right would inevitably compromise employers' abilities to lawfully monitor employees’ use and abuse of these systems in light of rote Board precedent prohibiting, for the most part, employer surveillance of employees’ Section 7 activity. For example, employers may be hampered if they cannot lawfully monitor employees’ use of their email systems during working and non-working times to detect or investigate: