NLRB Advice Memoranda, Northstar Insurance Advisors, LLC, National Labor Relations Board, (Jul 19, 2022)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

512-5012-0125

512-5012-0133-1100

512-5012-0175

512-5012-3322

512-5036-6720-2000

512-5036-6720-7500

The Region requested advice as to whether the Employer's handbook rules prohibiting employee use of its email and other electronic communication systems for personal use and discharging the Charging Party for communicating with coworkers about terms and conditions of employment by using those systems violated extant law and, per GC Memorandum 21-04, whether this case could serve as a vehicle to overturn Rio All-Suites Hotel and Casino. [1] We conclude that the Employer's rule governing use of its email and communication systems—which included employees' personal electronic devices—as well as its termination of the Charging Party was unlawful under extant law and, as such, the Region should use this case to urge the Board to find that Rio All-Suites is an unsuitable standard for the modern workplace and must be overruled. Instead, employees should have the right to use employer email and other electronic communications systems for nonbusiness purposes, absent a showing by the employer of special circumstances that justify specific restrictions.

FACTS

The Employer is an insurance company with about half of its employees working at its office in Wentzville, Missouri, and the other half working in remote locations. The Employer's handbook includes an Acceptable Use of Electronic Communication policy and an Electronic Mail and Voice Mail Monitoring policy (collectively, “IT Policy”), which state, in pertinent part:

Acceptable Use of Electronic Communication. This policy contains guidelines for Electronic Communications created, sent, received, used, transmitted, or stored using company communication systems or equipment and employee provided systems or equipment used either in the workplace, during working time or to accomplish work tasks. “Electronic Communications” include, among other things: messages, images, data or any other information used in email, instant messages, voice mail, fax machines, computers, personal digital assistants (including Blackberry, iPhone, iPad, tablet, smart phone or similar devices), text messages, pagers, telephones, cellular and mobile phones including those with cameras, Intranet, Internet, backup storage, information on a memory or flash key or card, jump or zip drive or any other type of internal or external removable storage drives. In the remainder of this policy, all of these communication devices are collectively referred to as “Systems.”

Employees may use our Systems to communicate internally with co-workers or externally with clients, suppliers, vendors, advisors, and other business acquaintances for business purposes. Use of the company's system for personal use is strictly prohibited.

…

Our Systems and Electronic Communications are not confidential or private. The company's right to use, access, monitor, record and disclose Electronic Communications without further notice applies equally to employee-provided systems or equipment used in the workplace, during working time, or to accomplish work tasks.

Employees may not use our Systems in a manner that violates our policies including but not limited to Equal Employment Opportunity, No Harassment, Sexual Harassment, Confidentiality of Client Matters, Care of Client Records, Protecting Company Information, Non-Solicitation, Distribution, and Internet Usage. Employees may not use our Systems in any way that may be seen as insulting, disruptive, obscene, offensive, or harmful to morale. Examples of prohibited uses include, but are not limited to: sexually-explicit drawings, messages, images, cartoons, or jokes; propositions or love letters; ethnic or racial slurs, threats of violence or bullying, or derogatory comments; or any other message or image that may be in violation of company policies or federal, state, and local law.

…

Nothing contained herein shall preclude an employee from engaging in conduct protected by Section 7 of the National Labor Relations Act.

…

Electronic Mail and Voice Mail Monitoring. We recognize your need to be able to communicate efficiently with fellow employees and clients. Therefore, we have installed electronic mail (email) and voice mail systems to facilitate the transmittal of business-related information within the company and with our clients. The email and voice mail systems are intended for business use only. The use of company email and/or voice mail systems for personal use is strictly prohibited. (Emphasis added.)

The Charging Party began working as ​     ​ at the Employer's Wentzville office in ​     ​ [2] ​     ​ was tasked with ​     ​ The Employer's performance data regarding ​     ​, provides that performer compared to ​     ​ co-workers. During this same period, however ​     ​ also received several “coachings”—non-disciplinary guidance from a manager—for failing to follow the Employer's official script and procedures in dealing with potential ​     ​, excessive time-clock errors (on ​     ​, and failing to ask requisite medical questions and sending unqualified individuals to insurance agents (on ​     ​ [3] .)

On ​     ​ the Charging Party texted a coworker about ​     ​ concern that the Employer miscalculated the Charging Party's overtime pay and ​     ​ suspicion that ​     ​ was not the only one. ​     ​ further indicated that ​     ​ had a plan of action but needed to garner a better understanding of the facts. On o around this same date, the Charging Party spoke with a different coworker about the potential pay discrepancy. That coworker said that ​     ​ had had the same issue in the past and notified the Employer but never heard back. [4]

The following afternoon, on ​     ​ the Charging Party used Microsoft Teams (“Teams”) to send the following question to approximately ​     ​ other ​     ​ “How long have you been working for [the Employer]?” Several employees responded by asking who ​     ​ was or why ​     ​ was asking this question, while others just answered ​     ​ question outright. ​     ​ intended to follow up by inquiring about ​     ​ suspected pay discrepancy, but ​     ​ Supervisor told ​     ​ that ​     ​ needed to stop working and requested-that the Charging Party come with ​     ​ to ​     ​ office. Once there. ​     ​ stated that the Charging Party created a disturbance by questioning ​     ​ coworkers about their years of service when they had no idea who ​     ​ was and why ​     ​ was asking this question. The Charging Party initially stated that ​     ​ was just trying to get to know ​     ​ coworkers; however, ​     ​ then admitted that ​     ​ was trying to investigate whether anyone else noticed a discrepancy in their paycheck ​     ​ told the Charging Party they would review the issue, and the Charging Party responded that ​     ​ would continue conducting ​     ​ own investigation too. The Charging Party returned ​     ​ desk but did not resp d to any of the responses ​     ​ received to ​     ​ original question.

The next day ​     ​ the Charging Party met with ​     ​ and following ​     ​ explanation of the calculations, agreed that ​     ​ paycheck was in fact correct. However, the Charging Party remarked that while ​     ​ paycheck may be correct, the Employer should confirm there is not a discrepancy for the rest of the ​     ​ because, if there was an issue and it remained unresolved, it would hurt morale, cause employees to look for other jobs, and, ultimately, cost the Employer revenue.

Two days later, on ​     ​ summoned the Charging Party to a meeting with the Employer's ​     ​ in which ​     ​ learned ​     ​ was being terminated. The meeting began by the Employer's ​     ​ noting that the Charging Party had been talking about ​     ​ pay and asking if ​     ​ had been talking about ​     ​ pay with other employees. The Charging Party responded, “I'm listening.” ​     ​ explained that the Charging Party was being terminated because ​     ​ work performance was unsatisfactory; ​     ​ discussed ​     ​ pay with other employees and, in doing so, used Teams for a non-business purpose; and ​     ​ talked about ​     ​ with coworkers. ​     ​ further explained that the Teams messages ​     ​ sent inquiring a out years of service had caused a disruption in the workplace nd, furthermore, they had coached ​     ​ several times and yet ​     ​ performance had not improved. At no time during the meeting did the ​     ​ reference the Employer's IT Policy. [5] Similarly, the Charging Party's termination letter merely states that ​     ​ was terminated due to “unsatisfactory overall work performance.” The Employer did not reference the IT Policy as a reason for the Charging Party's termination until the Region began investigating the charge at issue in this case.

ACTION

We conclude that the IT Policy is unlawful under Rio All-Suites [6] because the Employer's ban of nonbusiness use of its email and other electronic communication systems included employees' personal devices at work. In enforcing this unlawfully overbroad rule to substantiate the Charging Party's termination, we conclude that the termination was also unlawful under Continental Group. [7] In the alternative, we conclude that irrespective of the unlawful rule, the Employer's reasons for terminating the Charging Party were purely pretextual and thus, under Wright Line, [8] the Charging Party was unlawfully terminated for engaging in protected concerted activity. Lastly, given the violations of extant law, the Region should use this case to urge the Board to overrule Rio All-Suites and hold that employers cannot prohibit employees from using company email and other electronic communications systems for nonbusiness use absent a showing by the employer of special circumstances that justify specific restrictions.

A. Overbroad IT Policy

In Rio All-Suites, the Board overturned Purple Communications, Inc. [9] and reinstated the standard announced in Register Guard [10] that an employer's property rights allow it to restrict the nonbusiness use of its IT resources “absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.” [11] Thus, under extant law, employers have near complete authority to control how employees use company email or other communication software that runs on the Employer's IT resources. The Board did not, however, extend the employer's authority to encompass employees' personal devices.

Thus, the IT Policy is unlawful under Rio All-Suites because it prohibits employees from using their own personal devices for nonbusiness use. The Employer's IT Policy specifies that “employee provided systems or equipment”—which includes, among other things, “computers, personal digital assistants (including Blackberry, iPhone, iPad, tablet, smart phone or similar devices) text messages, … cellular and mobile phones”—are strictly prohibited for personal use. These restrictions covering employees' own devices apply “either in the workplace, during working time or to accomplish work tasks.” The rule's use of the phrase “either,” along with the disjunctive “or,” conveys that the rule prohibits all nonbusiness use of employees' personal devices in three circumstances: in the workplace, during working time, or while accomplishing work tasks. As such, employees are effectively prohibited from using their personal devices for non-business purposes during the entire workday regardless of whether they are on working time. The Employer has offered no evidence that such a broad prohibition was necessary to promote production or discipline. Neither Rio All-Suites nor any other Board precedent supports such a broad restriction. In fact, Supreme Court precedent strictly prohibits it. [12]

In the alternative, we also conclude that the IT Policy is unlawfully broad because it enables the Employer to surveil the personal devices of its employees. As provided in the IT Policy: “Electronic Communications are not confidential or private. The company's right to use, access, monitor, record and disclose Electronic Communications without further notice applies equally to employee-provided systems or equipment used in the workplace, during working time, or to accomplish work tasks.” Such an intrusive exercise of surveillance on personal devices is unsupported by Rio All-Suites or any other Board decision. Such a broadly drafted rule creates the impression of surveillance, which is enough to chill employees' engagement in Section 7 activity on their personal devices during nonworking time.

B. Unlawful Termination

We conclude that the Charging Party's Teams messages constituted protected concerted activity and ​     ​ termination was unlawful because the Employer relied upon its unlawfully broad IT Policy to substantiate the Charging Party's termination or, in the alternative, the Employer terminated the Charging Party in retaliation for ​     ​ protected concerted activity and attempted to justify its decision with pretextual sons.

i. Protected Concerted Activity

For employees to enjoy the Act's protection, two elements must be satisfied: “the activity they engage in must be ‘concerted,’ and the concerted activity must be engaged in ‘for the purpose of … mutual aid or protection.’” [13] The Charging Party's actions—attempting to initiate a conversation with ​     ​ coworkers about a potential pay discrepancy—incontrovertibly constitutes an action in the interest of mutual aid or protection. [14] As such, the Charging Party's conduct is protected under Section 7 if it was concerted.

Although protection for joint employee action “lies at the heart of the Act,” individual employee action is concerted if it is sufficiently linked to group action. [15] Individual conduct has been found concerted both in the form of preliminary discussions [16] and where such conduct is the logical outgrowth of earlier collective discussions. [17] This has included preliminary communications by a lone employee addressing coworkers that seek to initiate, induce, or prepare for group action, as well as statements directed to management communicating a truly group complaint. [18] In addition, employee communications about vital categories of workplace life, such as wages or job security, are “inherently concerted” notwithstanding the absence of direct evidence that group action has been contemplated. [19]

Here, the Charging Party's Teams messages were concerted. First, they were the logical outgrowth of the Charging Party's conversations with two coworkers the day prior regarding the potential pay discrepancy. Those two conversations were clearly concerted, as they concerned the Charging Party and ​     ​ coworkers' wages and the Charging Party's plan of action, which the Charging Party stated was subject to ​     ​ obtaining a better understanding of the facts. The evidence demonstrates that the Charging Party sent the Teams messages for this purpose—to facilitate a wider discussion about who else may be affected by the potential overtime pay discrepancy and what they, the aggrieved employees, should do about it. Second, in addition to a “logical outgrowth” theory, we conclude the Charging Party's Teams messages were concerted because they were the type of inchoate activity that precedes group action for the purpose of improving working conditions. Thus, although the Employer prevented the Charging Party from continuing the conversation and explicitly broaching the subject of pay with ​     ​ coworkers, “almost any concerted activity for mutual aid or protection has to start with some kind of communication between individuals, [and thus] it would come very near to nullifying the rights of organization and collective bargaining guaranteed by Section 7 of the Act if such communications are denied protection because of lack of fruition.” [20] Therefore, we conclude that the Charging Party's Teams messages constituted protected concerted activity.

ii. Discharge was Pursuant to Unlawfully Broad Rule

In Continental Group, the Board explained that an employer violates Section 8(a)(1) by issuing discipline pursuant to an unlawfully overbroad rule where the employee violated the rule by “(1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7.” [21] In fact, this principle holds true even in situations in which an employer could have otherwise lawfully prohibited the conduct at issue if it had promulgated a narrowly tailored rule in the first place. [22] Nevertheless, an employer may avoid liability for discipline imposed pursuant to an overbroad rule “if it can establish that the employee's conduct actually interfered with the employee's own work or that of other employees or otherwise actually interfered with the employer's operations, and that the interference, rather than the violation of the rule, was the reason for the discipline.” [23] But an employer's mere citation of the overbroad rule as the basis for discipline will not suffice to meet that burden. Rather, the employer must demonstrate that it relied on the employee's interference with production and not simply the violation of the overbroad rule. [24]

As previously discussed, the Charging Party engaged in protected concerted activity by attempting to start a conversation with coworkers about a potential pay discrepancy via Teams and the Employer asserts ​     ​ was subsequently terminated, in part, due to ​     ​ infringement of the unlawfully broad IT Policy. The unlawful portion of the rule—i.e., entirely prohibiting the nonbusiness use of employees' personal devices in the workplace and creating the impression employees' personal devices are under surveillance—was not applicable to the Employer discharging the Charging Party for ​     ​ misuse of Teams. However, in Continental Group, the Board did not exonerate employers who were careless in promulgating rules that mixed lawful and unlawful provisions. In fact, the Board did quite the opposite by clarifying that even though employers may have the authority to lawfully restrict some Section 7 activity, “if an employer fails to exercise that authority … by promulgating an invalid rule[,] the employee activity that could otherwise be prohibited retains its protected character.” [25] As such, the Board is not responsible for removing illegal portions of otherwise lawful rules, and employers, like the Employer here, must endure the consequences of interweaving lawful restrictions with unlawfully broad provisions like the IT Policy.

The Employer cannot demonstrate that, regardless of its unlawfully broad IT Policy, the Charging Party's discharge was justified because ​     ​ protected concerted activity created a disturbance in the Employer's production and that disturbance, not the violation of the rule, was the reason for the discharge. Beyond ​     ​ and ​     ​ vaguely informing the Charging Party that ​     ​ Teams messages created a disruption, the Employer's defense of the charges does not stress that the Charging Party was terminated for creating a disruption, nor has it produced evidence demonstrating that ​     ​ Teams message created a disruption in the Employer's workforce. [26] Therefore, we conclude that the Charging Party's discharge pursuant to an unlawfully broad IT Policy violated Section 8(a)(1).

iii. In the Alternative, the Charging Party was Discharged for Engaging in Protected Concerted Activity

Motive-based violations of the Act, such as discharging an employee for union or protected concerted activities, are analyzed under the Wright Line burden-shifting framework. [27] Under that test, the General Counsel bears an initial burden of demonstrating that protected activity was a motivating factor in the adverse employment action, as established by the following elements: (1) protected activity by the employee, (2) employer knowledge of that activity, and (3) animus on the part of the employer. [28] The burden then shifts to the employer to establish that it would have taken the same action even in the absence of the protected activity. [29]

Here, the General Counsel can satisfy her initial burden of demonstrating that the Charging Party's discharge was motivated by animus toward ​     ​ attempt to talk to ​     ​ coworkers about their pay. As previously discussed, the Charging Party en ged in protected concerted activity by using Teams to begin a discussion with ​     ​ co-workers about a potential pay discrepancy. While the Employer may have been initially unaware of the Charging Party's motive in asking others about their tenure with the Employer, the Charging Party quickly disclosed that ​     ​ was attempting to discern whether anyone else noticed a discrepancy in their pay. And there is clear evidence of animus. Upon learning the Charging Party's motivation, the Employer closely scrutinized ​     ​ performance record, disciplinary history, and Teams chats. Significantly, three days after ​     ​ sent the Teams messages, the Employer terminated the Charging Party and cited ​     ​ discussion of pay on Teams as one of the reasons.

The Employer cannot satisfy its burden of demonstrating that it would have discharged the Charging Party in the absence of ​     ​ protected concerted activity. [30] The Employer attempts to paint the Charging Party as a chronic underperformer who, despite many non-disciplinary coaching sessions, frequently failed to follow the script and sent unqualified customers to the licensed insurance agents. In addition, the Employer cited three written warnings—for ​     ​ a time-logging error, and a performance issue—the Charging Party received during the ​     ​ worked for the Employer. However, the Employer's justifications are unpersuasive. A closer look at the statistics demonstrates that the Charging Party was an average to above-average ​     ​ And while ​     ​ may have received several written warnings, ( the Employer has failed to explain why ​     ​ “disruption” of the workplace via Teams warranted immediate discharge. [31] Indeed, the Employer's progressive discipline procedure called for issuance of a final written warning or suspension. Furthermore, there is no evidence to suggest that the Employer would have so closely scrutinized the Charging Party's record and concluded that was no longer a good for fit for the Employer had it not been for the Charging Party's protected concerted activity. In fact, ​     ​ use of Teams to discuss the pay issue not only triggered the Employer's investigation, but it was the most prominent issue mentioned during ​     ​ termination meeting. Furthermore, the Employer did not cite the IT Policy and the Charging Party's non-business use of Teams a basis for discipline until it responded to the Region's investigation. [32] As such, the Employer has failed to demonstrate that it would have discharged the Charging Party in the absence of ​     ​ use of Teams for protected concerted activity; therefore, ​     ​ discharge violates the Act.

C. The Board Should Overrule Rio All-Suites and Expand Purple Communications to Include Other Forms of Electronic/Information Technology

In 2019, the Board in Rio All Suites overruled Purple Communications and returned to the previous standard created some 12 years earlier in Register Guard, which enables employers to bar employees from using their IT systems, including email, for nonbusiness purposes. In attempting to justify this conclusion, the Board largely parroted the same dubious property-rights analysis and disingenuous summary of the modern workplace that the Board used in Register Guard, overlooking the developments in technology that occurred in the ensuing 12 years. As the workplace and technology have continued evolving, especially during these past years of the COVID-19 pandemic, relying on these principles to restrict employee communications at work is even more inappropriate in 2022 than it was in 2007. As such, the Region should urge the Board to revisit and overturn Rio All-Suites and expand upon the reasoning in Purple Communications to provide employees with a right to use for nonbusiness purposes company email and any other electronic communication platform that is used in their workplace.

The standard set forth in Purple Communications is not only firmly rooted in Supreme Court and Board precedent, but a practical acknowledgment of the challenges workers face in the modern workplace. The Board emphasized, in conformity with long held views of the Supreme Court, that the workplace is “uniquely appropriate” and “the natural gathering place” for workers to discuss their terms and conditions of employment that may one day blossom into concerted activity and collective organization. [33] As businesses began to rely upon email as a primary source of communication, teleworking increased, and face-to-face interaction became less frequent, the Board reasoned that workers must also be able to use this medium to communicate because the loss of the freedom to communicate correlates to the loss of the freedom to organize. [34] Furthermore, the Board explained that personal devices and social media accounts are inadequate alternatives for coworkers to communicate about workplace issues. Personal email, texting, and social media may seem like suitable substitutes at first blush, but it is an illusory option. So many employees “have no regular face-to-face contact with each other at work, and no practical way to obtain each other's email addresses, social media account information, or other information necessary to reach each other individually or as a discrete group.” [35] In addition to the obvious logistical pitfalls, there is simply no replacing the organic development of relationships and trust that take shape when employees communicate with one another in a work environment. [36] Thus, the Board embraced its responsibility “to adapt the Act to the changing patterns of industrial life” [37] by adopting a common-sense standard under which employees who have been given access to their employer's email system in the course of their work are “entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.” [38]

In contrast, the Rio All-Suites decision “overruled Purple Communications and, in its place, resurrected an approach that not only is out of touch with modern workplace realities, but that also contradicts basic labor law principles.” [39] The shortcomings of the majority's opinion can be distilled down to three main errors. First, the Board misconstrued the rights and interests of employees who have been granted permission to be on and use the employer's property with those of nonemployees. [40] This misclassification is crucial because rather than engaging in the requisite balancing of an employer's managerial interests against an employee's right to organize—as is required by Hudgens, [41] Beth Israel Hospital, [42] and Eastex [43] —the Board inexplicably treated employees as nonemployees, enabling employers to use Babcock & Wilcox [44] to justify elevating their property interests above the Section 7 rights of employees. [45] Second, the majority's attempt at equating antiquated forms of workplace equipment with email is disingenuous. [46] As thoroughly analyzed in Register Guard's dissent, bulletin boards, fax machines, telephones, televisions, and scraps of paper are nothing like email's “sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges”—rather, they involve “far more limited and finite resources.” [47] The majority also misconstrued the precedential weight of the Board's equipment cases by constructing an absolute ban on employees' non-business use of employer email systems upon statements that were best understood as dicta, not controlling precedent. [48] Third, the majority “impermissibly under-weight[ed] employees' Section 7 rights while impermissibly over-weighting employers' property rights” without substantiating why such an imbalance of interests was necessary to protect the employer from an undefined harm. [49] Instead, the majority merely relied upon an alternative means test and fantasized about a fictional “typical workplace” in which face-to-face interaction, personal devices, and social media provides so much opportunity for workers to communicate with one another that access to company email is wholly unnecessary. [50]

Purple Communications was a carefully reasoned decision that produced a long overdue standard for the modern workplace; nevertheless, new technological advancements and dramatic shifts in workplace organization have made it apparent that the Board must again recalibrate its outlook on workplace communication and expand the Purple Communications standard to include other employer electronic communication systems. This is unsurprising, as the Purple Communications Board presciently observed that “technological changes are continuing; indeed, they are accelerating.” [51] What is surprising is the speed at which this accurate prediction came to fruition. Merely five years after Purple Communications was decided, the workforce evolved dramatically:

• “Forty percent more U.S. employers offered flexible workplace options than did [in 2014].” [52]

• By 2019, “5.7 million employees (4.1% of the U.S. employee workforce) telecommuted half-time or more”—compared to the 3.3 million people cited in Purple Communications. [53]

• “Regular telecommuting grew 216% between 2005 and 2019, more than 11 times faster than the rest of the workforce (which grew 20%) and 54 times faster than the self-employed population (which grew by 4%).” [54]

None of this growth would be possible without email and IT systems connecting workplaces as seamlessly as if employees were all still working within the same physical location. Upon the emergence of the COVID-19 pandemic, even workplaces that did not anticipate offering telework embraced the option:

• “Telework accounted for about 50% of paid work hours between April and December 2020, compared with 5 percent before the pandemic.” [55]

• As compared to the 4.1% cited in 2019, “[b]etween July and September 2021, 13% of jobs in U.S. private sector businesses involved teleworking full time and 22% involved teleworking at least some of the time.” [56]

• “54% of pandemic teleworkers said that, if they had a choice, they'd want to work from home all or most of the time when the coronavirus outbreak is over. A third say they'd want to work from home some of the time …. Some 46% of those who rarely or never teleworked before the coronavirus outbreak say they'd want to work from home all or most of the time when the pandemic is over.” [57]

As illustrated by these statistics, the “typical workplace” as contemplated by the Board in Rio All-Suites is atypical by today's standards. [58] However, it is important to note that email is not, in and of itself, making the traditional office obsolete. A myriad of applications, including, but not limited to, Slack, WhatsApp, Discord, WebEx, Teams, Zoom, Hangouts, GoToMeeting, Drive, and Dropbox, have further revolutionized the way companies operate and enabled workforces to stay in constant contact with both their employees and documents despite being located anywhere in the world. [59] In fact, in many workplaces, some of these applications are the preferred platform to conduct business instead of email. [60]

For this reason, it is vital that the Board not only reinstate Purple Communications, but also expand it to include any other communication software that a workforce might utilize. Whether it be email or an application, “these technologies are now the infrastructure for employee interactions in the same way that the walls of a breakroom or benches of a cafeteria have always been recognized,” and as such, employees must have the right to use these spaces to communicate, develop relationships, and form the requisite trust needed to build collective action. [61] To hold otherwise would be a conscious failure to adapt to the modern workplace and protect employees' most basic right to communicate with one another.

CONCLUSION

The Region should issue complaint, absent settlement, alleging that the Employer's unlawfully broad IT Policy and related discharge of the Charging Party violated Section 8(a)(1). The Region should also use this case to argue that the Board should overrule Rio All-Suites and adopt a modified Purple Communications standard that protects employees' rights to use email and any other communication platform that they are authorized to use in the workplace for non-business purposes during non-working time, while still providing employers with an opportunity to demonstrate special circumstances that justify specific restrictions.

/s/

R.A.B.

ADV.14-CA-285828.Response.NorthstarInsurance ​     ​