Purple Communications

National Labor Relations Board - Administrative Judge Opinions

Mar 16, 2015

21-CA-095151 (N.L.R.B. Mar. 16, 2015)

JD–14–15
Corona &
Long Beach CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PURPLE COMMUNICATIONS, INC.
and Case Nos. 21-CA-095151
21-RC-091531
21-RC-091584
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO
Cecelia Valentine, Esq.
for the General Counsel.
Robert J. Kane, Esq.
(Stradling, Yocca, Carlson &
Rauth) Newport Beach,
California,
for the Employer.
Lisl R. Duncan, Esq.
(Weinberg, Roger & Rosenfeld)
Los Angeles, California,
and, David A. Rosenfeld, Esq.
(Weinberg, Roger & Rosenfeld)
Alameda, California,
for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I issued my initial decision in these
consolidated cases on October 24, 2013. The General Counsel, the Respondent/Employer
(Purple Communications, Inc.) and the Charging Party/Union (Communications Workers of
America, AFL-CIO) all filed exceptions to that decision and, on September 24, 2014, the
National Labor Relations Board (the Board) issued a Decision that, inter alia, severed and held
for further consideration the question of whether the Respondent had violated Section 8(a)(1) of
the National Labor Relations Act (the Act) by maintaining its electronic communication policy.
361 NLRB No. 43 (2014). On December 11, 2014, a majority of the full Board issued a
Decision and Order remanding that issue to me "to reopen the record and afford the parties an
opportunity to present evidence relevant to the standard we adopt today, and for the judge to
prepare a supplemental decision." 361 NLRB No. 126, slip op. at 2 (2014).
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2
In its remand decision, the Board explicitly "overrul[ed] Register Guard's1 holding that,
under ordinary circumstances, even employees who have been given access to their employer's
email system have no right to use it for Section 7 purposes."2 Slip op. at 5.3 In its place, the5
Board adopted a presumption, based on the Supreme Court analysis in Republic Aviation,4 that
employees who have been given access to the employer's email system in the course of their
work are entitled to use the system to engage in statutorily protected Section 7 discussions
while on nonworking time. Slip op. at 5. The Board stated that "[a]n employer may rebut the
presumption by demonstrating that special circumstances necessary to maintain production or 10
discipline justify restricting its employees rights." Slip op. at 14. Explaining how this standard
was to work in practice, the Board stated that "[a]n assertion of special circumstances will
require that the employer articulate the interest at issue and demonstrate how that interest
supports the email use restrictions." Slip op.at 5. The Board "anticipate[d] that it w[ould] be the
rare case where special circumstances justify a total ban on nonwork email use by employees" 15
such as the ban involved here. Slip op. at 14.
The Board stated that absent a justification for a total ban on employee use of a
company email system for Section 7 purposes, the employer may apply uniform and
consistently enforced controls over its email system if it can establish that such controls are 20
necessary to maintain production and discipline. Its decision, the Board said, applies to
company email systems, but not to any other type of electronic communications systems. Slip
op. at 1. Regarding remedy, the Board stated that "[i]f the Respondent's policy is ultimately
found unlawful, its remedial obligations will be limited to rescission of the policy and standard
notifications to employees." Slip op.at 17. 25
In my original decision, I applied Register Guard and held that the Respondent's
restrictions on employee use of its email system were not a violation of the Act. Pursuant to the
Board's remand decision, I now evaluate the same restrictions under the standard set forth in
that decision.30

1
Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard
Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).
2
Section 7 of the Act, 29 U.S.C. Section 157, states:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as authorized in section
8(a)(3) [section 158(a)(3) of this Title].
3
Prior to issuing its remand decision, the Board, on April 30, 2014, invited the parties and interested
amici to file briefs on questions relating to the possibility of overruling Register Guard. The Board's
remand decision includes extensive analysis in support of its conclusion that Register Guard's holding
was "clearly incorrect" and could not be permitted to stand given, inter alia, the dramatically expanded
use of email in recent years and the Board's "obligation to accommodate the competing rights of
employers and employees." Slip op. at 1 and 14. Rather than risk oversimplifying or misstating the
Board's analysis here, I refer the reader the discussion in the Board's remand decision. See slip op. at 1
and 4-17.
4
Republic Aviation, 324 U.S. 793 (1945).
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3
FACTS
The Respondent provides real-time sign language interpretation during video calls. Its
employee-interpreters communicate orally with the hearing participant on the video call and by 5
sign language with the deaf or hard of hearing participant. It offers these services 24 hours a
day, 7 days a week. The Respondent has16 call center facilities across the United States, two
of which – one in Corona, California, and one in Long Beach, California – are involved in this
litigation. The interpreters use company-provided workstation computers to access the
Respondent's intranet system and various work programs. These workstation computers have 10
limited, if any, access to the internet and non-work programs. At the Corona and Long Beach
facilities, the Respondent also maintains a small number of shared computers that are located
in common areas and from which employees are able to access the internet and non-work
programs.
15
The Respondent assigns an individual email account to each interpreter and the
interpreters are able to access these accounts from the workstation computers as well as from
their home computers and personal smart phones. Employees use the company email system
on a daily basis while at work for communications among themselves. The company email is
also used for communications between managers and employees.20
Since June 19, 2012, the Respondent has maintained a handbook policy that prohibits
employees from using the company email system for non-business purposes.5 That policy
states:
25
INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC
COMMUNICATION POLICY
Computers, laptops, internet access, voicemail, electronic mail (email),
Blackberry, cellular telephones and/or other Company equipment is 30
provided and maintained by the [sic] Purple to facilitate Company
business. All information and messages stored, sent, and received on
these systems are the sole and exclusive property of the Company,
regardless of the author or recipient. All such equipment and access
should be used for business purposes only.35
* * *
Prohibited activities
Employees are strictly prohibited from using the computer, internet, 40
voicemail and email systems, and other Company equipment in
connection with any of the following activities:
* * *45

5
The General Counsel, Charging Party, and Respondent all entered into a stipulation that the handbook
containing this policy was in effect at the Corona and Long Beach locations. Joint Exhibit 2; see also
Transcript at Pages 13 and 18 (Counsel for the General Counsel represents that Joint Exhibit 1 – the
handbook – was in effect at the Corona and Long Beach locations). It may well be that the handbook
was in effect at other locations, or even companywide, but the record does not show that it was.
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4
2. Engaging in activities on behalf of organizations or persons with
no professional or business affiliation with the Company.
* * *
5. Sending uninvited email of a personal nature.5
The handbook provides that the Respondent may punish an employee's violation of this policy
with discipline up to and including termination.
Tanya Monette, vice-president for human resources, testified that the Respondent 10
prohibits employees from using the email system for non-business purposes in order to protect
against: computer viruses, the transmission of inappropriate information, and the release of
confidential company information. John Ferron, the Respondent's president and chief executive
officer, testified that the reason employees are prohibited from using their workstation
computers for non-business purposes is to prevent computer viruses from contaminating the 15
call center.
2. Analysis
a. Respondent's Electronic Communication Policy Interfered with 20
Employees' Section 7 Rights in Violation of Section 8(a)(1).
In the instant case, there is no dispute that the Respondent (1) grants employees access
to the company email system and (2) maintains a prohibition on non-business use of the
company email system that is broad enough to encompass employees' use of the email system 25
for Section 7 activities during nonworking time. Under the standard set forth in the Board's
remand decision, this prohibition presumptively interferes with employees' Section 7 rights and
violates Section 8(a)(1) of the Act6 unless the Respondent rebuts that presumption by showing
that the restrictions are justified by special circumstances necessary to maintain production or
discipline.30
In this case, the Respondent has declined to attempt to establish special circumstances
to rebut the presumption that it violated the Act. By letter dated February 3, 2015, the
Respondent represented to me that it would not be "submitting any argument to the
Administrative Law Judge either by brief or otherwise, contending that special circumstances, as 35
defined in the Board's decision, exist to justify the business use only restriction that Respondent
places on non-working time use of its e-mail system by employees." Attachment A. The
Respondent further stated that it "w[ould] not be presenting any additional evidence on the
special circumstances issue remanded by the Board for hearing." Ibid. Given that the
Respondent has the burden of establishing special circumstances to rebut the presumption, and 40
has not done so, I find that the Respondent's electronic communications policy violates Section
8(a)(1) of the Act.7

6
Section 8(a)(1) of the Act provides:
It shall be an unfair labor practice for an employer –
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 [section 157 of this title].
Section 8(a)(1), 29 U.S.C. Section 158(a)(1).
7
Subsequent to the remand, the Respondent submitted a brief arguing that the Board erred by
overturning Register Guard, supra, replacing it with a standard based on Republic Aviation, and applying
the new standard retroactively to this case. If these arguments have merit they are for the
Board to consider, not me. I am bound to follow Board decisions that have not been reversed by the
JD–14–15
5
In reaching the conclusion that the Respondent's policy violated the Act, I considered the
testimony of Monette and Ferron, who summarily listed reasons for portions of the electronic
communications policy. However, the Respondent does not assert that any of those concerns
rise to the level of special circumstances necessary to maintain production or discipline, nor has 5
it demonstrated that the stated concerns justify the email use restrictions. To the contrary, as
discussed above, the Respondent has stated that it does not contend that special
circumstances exist to justify the restrictions. Thus the Respondent has not rebutted the
presumption that those restrictions are unlawful.8
10
b. Decision Not to Take Additional Evidence on Remand
As discussed above, under the standard set forth in the Board's remand decision, the
Respondent violated Section 8(a)(1) because its electronic communications policy
presumptively violated employees' Section 7 rights and the Respondent has not established15
special circumstances that rebut that presumption. Nevertheless, the Charging Party seeks to
introduce additional evidence and filed an objection and offer of proof in response to my
decision not to take additional evidence.9 Neither the General Counsel nor the Respondent has
joined the Charging Party's call for a further hearing or the submission of additional evidence.

Board or the Supreme Court. See Pathmark Stores, 342 NLRB 378 fn. 1 (2004); Hebert Industrial
Insulation Corp., 312 NLRB 602, 608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2 (1982),
enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984). The same goes for the arguments
that the Charging Party makes in its post-remand brief calling for modifications to elements of the Board's
remand decision.
8
Given that it is the Respondent's burden to articulate special circumstances and demonstrate that those
circumstances justify its email restrictions, I believe that the Respondent's express disclaimer of any such
contentions ends the present inquiry. Nevertheless, in its post-remand brief the General Counsel devotes
considerable energy to arguing that the record evidence cannot support a special circumstances defense.
Even assuming that, despite the Respondent's disclaimer, I am required to investigate whether a special
circumstances defense can be conjured on the Respondent's behalf, I would find that the evidence here
does not begin to support such a defense. I note, first, that there is nothing "special" about Monette's and
Ferron's stated concerns with confidentiality, inappropriate communications, and computer viruses. The
record does not show that these generic concerns are in any way different for the Respondent than for
employers in general. Indeed, the fact that the Respondent permits employees to access the company
email system from their home computers and personal smart phones indicates that its concerns are not
particularly heightened. Nor does record provide a basis on which to conclude that such concerns justify
restricting employees' Section 7 rights
because other available measures (for example, anti-virus software or workplace rules specifically
addressing confidentiality and inappropriate communications) are inadequate. If employers are permitted
to negate the presumption regarding email usage simply by proffering generic concerns such as those
listed by Monette and Ferron, then then the exception would instantly swallow a rule that the Board just
took pains to consider and adopt, and would stand on its head the Board's expectation "that it will be the
rare case where circumstances justify a total ban on nonwork email use by employees."
9
In addition, the Charging Party filed a request that the Board grant special permission to appeal my
order setting a briefing schedule without taking additional evidence. On March 4, 2015, the Board denied
the Charging Party's appeal on the merits, stating that "[i]n light of the Respondent's representation that it
will not contend that any special circumstances, as defined in the Board's Decision . . . , exist to justify its
electronic communications policy, the judge reasonably determined that no additional evidence on this
issue need be presented." The Board noted that this denial was without prejudice to the Charging Party
"raising on exceptions, if appropriate, its argument that it should have been permitted to develop the
record evidence regarding the other matters described in its offer of proof."
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6
The Charging Party objects that it should be permitted to present additional evidence for
essentially three reasons: first, it hopes to show that the Respondent's email restrictions are
unlawful because they discriminate in violation of Section 8(a)(3), not only because they
interfere with employees' Section 7 rights in violation of Section 8(a)(1); second, it hopes to 5
show that the Respondent's email policy is unlawful not only because it restricts employees'
email use during nonworking time, but also because it restricts email use during working time;
and third, it hopes to show that certain unusual remedies (e.g., requiring the Respondent to read
the Board notice to employees) are warranted.
10
The matters that the Charging Party invites me to wade into are not only outside the
parameters of this remand proceeding, but are explicitly or implicitly excluded from it by the
Board's decision. The Charging Party's desire to introduce evidence of discrimination in
violation of Section 8(a)(3) is precluded by the Board's remand order, which states that the
allegation it is remanding is that the "Respondent violated Section 8(a)(1) by maintaining the 15
Electronic Communications Policy." Slip op. at 17 (Emphasis Added). Moreover, a Section
8(a)(3) contention has never been part of this proceeding because the complaint alleges only
that the policy violates Section 8(a)(1), not that it was discriminatorily maintained or enforced in
violation of Section 8(a)(3). As to the Charging Party's contention that the remand decision
requires consideration of whether the electronic communications policy is unlawful to the extent 20
that it restricts the use of email for Section 7 activity during working time, the Board's decision
not only does not require such an inquiry on remand, but forecloses it. The Board repeatedly
stated that the standard it was applying to the instant case only concerned Section 7 activity
during nonworking time. See slip op. at 5 ("we adopt a presumption that employees . . . are
entitled to use the system to engage in statutorily protected discussion . . . while on nonworking 25
time"), slip op. at 15 ("the presumption we apply is expressly limited to nonworking time"); see
also slip op. at 1 (the Board's "decision is carefully limited" and with respect to "total bans" it
concerns those that extend to "Section 7 use on nonworking time.") Regarding the
Respondent's insistence that it should be permitted to present evidence to justify certain special
remedies, this endeavor is explicitly ruled out by the Board's remand decision. The decision 30
states: "If the Respondent's policy is ultimately found unlawful, its remedial obligations will be
limited to rescission of the policy and standard notifications to employees." Slip op. at 17. At
any rate, the Board's remand decision did not make changes to remedial standards and so any
evidence that the Respondent believed was necessary on that subject could, and should, have
been presented at the hearing that was held prior to the remand. 35
CONCLUSION OF LAW
The Respondent has violated Section 8(a)(1) of the Act since June 19, 2012, by
maintaining an overly broad electronic communications policy that unlawfully restricts40
employees' use of the Respondent's email system for Section 7 purposes
REMEDY
In its remand decision, the Board stated: "If the Respondent policy is ultimately found 45
unlawful its remedial obligations will be limited to rescission of the policy and standard
notifications to employees." Slip op. at 17. Consistent with the Board's decision, and having
found that the electronic communications policy contains overly broad restrictions on
employees' ability to use the Respondents email system for Section 7 purposes, I will require
the Respondent to rescind its unlawful policy. The Respondent may comply with this order by 50
rescinding the email usage restrictions in the electronic communications policy. In addition, the
Respondent must either furnish employees with an insert for the current employee handbook
JD–14–15
7
that (1) advises that the unlawful electronic communications policy has been rescinded, or (2)
provides a lawfully worded electronic communications policy on adhesive backing that will cover
the one containing the unlawful email restrictions; or publish and distribute to employees revised
employee handbooks that (1) do not contain the unlawful electronic communications policy, or
(2) provide a lawfully worded electronic communications policy. World Color (USA) Corp., 360 5
NLRB No. 37, slip op. at 2 (2014) (citing 2 SistersFood Group, 357 NLRB No. 168, slip op. at 8
fn. 32 (2011); Guardsmark, LLC, 344 NLRB 809, 812 & fn. 8 (2005), enfd. in relevant part 475
F.3d 369 (D.C. Cir. 2007); see also 361 NLRB No. 43, slip op. at 5-6 (Board's order regarding
the handbook provision previously found unlawful in this case).
10
The General Counsel and the Charging Party both seek an order requiring that the
notice posting be directed not just to employees at the Corona and Long Beach, California,
facilities, but to employees companywide. A companywide posting is appropriate when the
record shows that the policy was maintained companywide. See Guardsmark, LLC, 344 NLRB
809, 812 (2005), enfd. in relevant part, 475 F. 3d 369 (DC. Cir. 2007). In this case the record 15
does not show that the policy was maintained companywide. The stipulation that all three
parties entered into at the start of the hearing states that the handbook was in effect at the
Corona and Long Beach locations. The parties did not introduce testimony or other evidence
showing that the handbook or the relevant policies were in effect companywide. See, supra,
footnote 5. Therefore, companywide posting is not appropriate. Indeed, earlier in this litigation, 20
the Board ordered posting only at the Corona and Long Beach locations regarding another
unlawful provision in the same handbook. 361 NLRB No. 43, slip op. 6. The Board observed
that the parties' stipulation in this case only reached the handbook's effectiveness at those two
locations. Id., slip op. at 1 n.4, 5 n.17 and n.21.
25
ORDER
The Respondent, Purple Communications, Inc., Corona and Long Beach, California, its
officers, agents, successors, and assigns, shall:30
1. Cease and desist from
(a) Maintaining an overly broad electronic communications policy that unlawfully
interferes with employees' use of the Respondent's email system for Section 7 purposes.
(b) In any like or related manner interfering with, restraining, or coercing employees in 35
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the overly broad electronic communications policy in its employee
handbook.
(b) Furnish employees with an insert for the current employee handbook that (1) advises 40
that the unlawful electronic communications policy has been rescinded, or (2) provides a
lawfully worded electronic communications policy on adhesive backing that will cover the one
containing the unlawful email restrictions; or publish and distribute to employees revised
employee handbooks that (1) do not contain the unlawful electronic communications policy, or
(2) provide a lawfully worded electronic communications policy. 45
(c) Within 14 days after service by the Region, post at its Corona and Long Beach,
California, facilities copies of the attached notice marked “Appendix.”10 Copies of the notice, on

10
If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board."
JD–14–15
8
forms provided by the Regional Director for Region 21, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 5
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Respondent has gone out of business or
closed a facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by 10
the Respondent at any time since June 19, 2012.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
15
Dated, Washington, D.C. March 16, 2015
____________________
PAUL BOGAS20
Administrative Law Judge
JD–14–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain an overly broad electronic communications policy that unlawfully
interferes with your use of the Respondent's email system for Section 7 activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the overly broad electronic communications policy in our employee handbook.
WE WILL furnish you with an insert for the current employee handbook that (1) advises that the
unlawful electronic communications policy has been rescinded, or (2) provides a lawfully worded
electronic communications policy on adhesive backing that will cover the one containing the
unlawful email restrictions; or WE WILL publish and distribute to you revised employee
handbooks that (1) do not contain the unlawful electronic communications policy, or (2) provide
a lawfully worded electronic communications policy.
Purple Communications, Inc.
(Employer)
Dated By
Representative Title
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449
(213) 894-5200, Hours: 8:30 a.m. to 5 p.m.
JD–14–15
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/21-CA-095151 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (213) 894-5184.
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Attachment A
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