Purple Communications, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 2017

365 NLRB No. 50 (N.L.R.B. 2017)

365 NLRB No. 50
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Purple Communications, Inc. and Communications
Workers of America, AFL–CIO. Cases 21–CA–
095151, 21–RC–091531, and 21–RC–091584
March 24, 2017
SUPPLEMENTAL DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On March 16, 2015, Administrative Law Judge Paul
Bogas issued the attached supplemental decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel and Charging Party each filed an-
swering briefs. The Charging Party also filed a reply to
the General Counsel’s answering brief. The Charging
Party filed cross-exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has considered
the supplemental decision and the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions1 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Purple Communications,
Inc., Corona and Long Beach, California, its officers,

1 In its initial decision in this case, Purple Communications, Inc.,
361 NLRB No. 126 (2014) (Purple I), the Board partially overruled
Register Guard, 351 NLRB 1110 (2007), enfd. in part and remanded in
part 571 F.3d 53 (D.C. Cir. 2009), and held that “employee use of email
for statutorily protected communications on nonworking time must
presumptively be permitted by employers who have chosen to give
employees access to their email systems.” 361 NLRB No. 126, slip op.
at 1. The Board further held that “[a]n employer may rebut the pre-
sumption by demonstrating that special circumstances necessary to
maintain production or discipline justify restricting its employees’
rights.” Id., slip op. at 14. The Board remanded the proceeding to the
judge to “allow[] the parties to introduce evidence relevant to a deter-
mination of the lawfulness of the Respondent’s electronic communica-
tions policy” under the Board’s new standard. Id., slip op. at 17. On
remand, the Respondent notified the judge that it would not contend
that special circumstances exist justifying its electronic communica-
tions policy. The judge issued the attached supplemental decision,
finding that the Respondent had not rebutted the presumption that its
policy is unlawful. On exceptions, the Respondent concedes that it did
not show special circumstances justifying its policy but contends that
Purple I was wrongly decided and should be reconsidered. Our dis-
senting colleague finds merit in those exceptions. We reject his posi-
tion for the reasons stated in the majority decision in Purple I. Id., slip
op. at 6 fn. 18, 14–15 fn. 71. See also Cellco Partnership d/b/a Verizon
Wireless, 365 NLRB No. 38, slip op. at 1 fn. 3 (2017).
agents, successors, and assigns, shall take the action set
forth in the Order.
Dated, Washington, D.C. March 24, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, dissenting.
Again before the Board is the issue whether the Re-
spondent’s Internet, Intranet, Voicemail, and Electronic
Communications Policy (Policy) is lawful under the Na-
tional Labor Relations Act (NLRA). In its prior decision
in this case, a Board majority, overruling in relevant part
Register Guard, 351 NLRB 1110 (2007),1 held that if
employees have been granted access to their employer’s
email system for work-related purposes, the Board will
presume that they have a right to use that email system to
engage in NLRA-protected communications on non-
working time, unless the employer demonstrates that
special circumstances warrant restricting that presump-
tive right.2 The majority in Purple Communications I
remanded the case to the administrative law judge to give
Respondent an opportunity to demonstrate special cir-
cumstances. On remand, the Respondent notified the
judge that it would not mount a special circumstances
defense. The judge then issued a supplemental decision,
finding that the Respondent had not rebutted the pre-
sumption that its Policy is unlawful. On exceptions, the
Respondent concedes the issue of special circumstances
but contends that Purple Communications I was wrongly
decided and should be reconsidered.
I find merit in the Respondent’s exceptions. As I ex-
plained in my dissenting opinion in Purple Communica-
tions I, I believe the standard adopted by the Board ma-
jority in that decision is incorrect and unworkable.
 The Purple Communications standard improper-
ly presumes that when an employer reserves the
use of its email system for business purposes,
this unreasonably impedes employees’ NLRA-

1 Enfd. in relevant part and remanded sub nom. Register Guard
Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).
2 Purple Communications, Inc., 361 NLRB No. 126, slip op. at 11–
16 (2014) (Purple Communications I).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
protected activities.3 Far from balancing the
“undisputed right of self-organization assured to
employees” with “the equally undisputed right
of employers to maintain discipline in their es-
tablishments,”4 the Board in Purple Communi-
cations I assumed that restricting an employer’s
email system to business-related uses constitutes
“an unreasonable impediment to self-
organization,”5 notwithstanding the widespread
availability of multiple digital platforms (e.g.,
social media, text messaging, and personal
email accounts)—not to mention old-fashioned
face-to-face conversation—through which em-
ployees may engage in NLRA-protected com-
munications separate and apart from their em-
ployer’s email system.
 The Purple Communications standard fails to
accommodate employers’ property rights in
their information technology resources, which
typically cost a great deal to acquire, maintain,
and secure.6
 The Purple Communications standard makes it
enormously difficult for employers to enforce a
valid rule prohibiting solicitation during working
time, where, by the very nature of emails, it is like-
ly that an email sent during one employee’s non-
working time will be received and read by em-
ployees during their working time. The Purple
Communications standard also makes it extremely
difficult for employers to avoid unlawful surveil-
lance of NLRA-protected activities, even though
employers often have legitimate reasons to search
and retrieve employee work emails.7
 The Purple Communications standard, which
gives employees a presumptive right to use their
employer’s email system for NLRA-protected
communications and places the burden on the em-
ployer to demonstrate “special circumstances”
warranting restricting that right, fails to give em-
ployers and employees “certainty beforehand”8
concerning what they may and may not do, since
what qualifies as a “special circumstance” will on-
ly be determined after the fact and case by case,

3 Id., slip op. at 20–22 (Member Miscimarra, dissenting).
4 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798 (1945).
5 Id. at 803 fn. 10.
6 Purple Communications I, supra, slip op. at 22–24 (Member
Miscimarra, dissenting).
7 Id., slip op. at 24–26 (Member Miscimarra, dissenting).
8 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679
(1981).
following potentially years of Board and court liti-
gation.9
For the above reasons, I believe Purple Communica-
tions I was wrongly decided, and I would return to the
rule of Register Guard that employers may lawfully con-
trol the uses of their email systems, provided they do not
discriminate against NLRA-protected communications
by distinguishing between permitted and prohibited uses
along Section 7 lines.10 It is undisputed that the Re-
spondent’s Policy is lawful under Register Guard, and I
would so find. In addition, although Register Guard
dealt specifically with an employer’s policy regarding
use of its email system, the Board in Register Guard re-
lied on cases in which it more broadly held that there is
“no statutory right . . . to use an employer’s equipment or
media.”11 I agree with this rationale, and I would apply
the holding of Register Guard not just to employer-
provided email systems, but to employers’ information
technology equipment and resources generally.
Accordingly, for these reasons, I respectfully dissent.
Dated, Washington, D.C. March 22, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD
Cecelia Valentine, Esq., for the General Counsel.
Robert J. Kane, Esq. (Stradling, Yocca, Carlson & Rauth), of
Newport Beach, California, for the Employer.
Lisl R. Duncan, Esq. (Weinberg, Roger & Rosenfeld), of Los
Angeles, California, and David A. Rosenfeld, Esq. (Wein-
berg, Roger & Rosenfeld), of Alameda, California, for the
Charging Party.

9 Purple Communications I, supra, slip op. at 27–28 (Member
Miscimarra, dissenting).
10 Register Guard, 351 NLRB at 1114–1116.
11 Mid-Mountain Foods, 332 NLRB 229, 230 (2000), enfd. 269 F.3d
1075 (D.C. Cir. 2001). See also Eaton Technologies, 322 NLRB 848,
853 (1997) (“It is well established that there is no statutory right of
employees or a union to use an employer’s bulletin board.”); Champion
International Corp., 303 NLRB 102, 109 (1991) (stating that an em-
ployer has “a basic right to regulate and restrict employee use of com-
pany property” such as a copy machine); Churchill’s Supermarkets,
285 NLRB 138, 155 (1987) (“[A]n employer ha[s] every right to re-
strict the use of company telephones to business-related conversations
. . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988), cert. denied 490 U.S. 1046
(1989); Union Carbide Corp., 259 NLRB 974, 980 (1981) (employer
“could unquestionably bar its telephones to any personal use by em-
ployees”), enfd. in relevant part 714 F.2d 657 (6th Cir. 1983); cf. Heath
Co., 196 NLRB 134 (1972) (employer did not engage in objectionable
conduct by refusing to allow prounion employees to use public address
system to respond to antiunion broadcasts).
PURPLE COMMUNICATIONS, INC. 3
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 Communi-
cations, 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 Rela-
tions Board (the Board) issued a Decision that, inter alia, sev-
ered 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 Decem-
ber 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). In its remand decision, the Board explicitly “over-
rul[ed] Register Guard’s1 holding that, under ordinary circum-
stances, 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, the 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 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 circum-
stances will require that the employer articulate the interest at

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 Sec. 7 of the Act, 29 U.S.C. Sec. 157, states:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all such activi-
ties except to the extent that such right may be affected by an agree-
ment 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 relat-
ing to the possibility of overruling Register Guard. The Board's re-
mand 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).
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” 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 purpos-
es, the employer may apply uniform and consistently enforced
controls over its email system if it can establish that such con-
trols are 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 stand-
ard notifications to employees.” Slip op.at 17.
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.
Facts
The Respondent provides real-time sign language interpreta-
tion during video calls. Its employee-interpreters communicate
orally with the hearing participant on the video call and by sign
language with the deaf or hard of hearing participant. It offers
these services 24 hours a day, 7 days a week. The Respondent
has 16 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 Re-
spondent’s intranet system and various work programs. These
workstation computers have limited, if any, access to the inter-
net and nonwork 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 nonwork
programs.
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 com-
munications among themselves. The company email is also
used for communications between managers and employees.
Since June 19, 2012, the Respondent has maintained a hand-
book policy that prohibits employees from using the company
email system for nonbusiness purposes.5 That policy states:
INTERNET, INTRANET, VOICEMAIL AND

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. Jt. Exh. 2; see also Tr. at pp.
13 and 18 (Counsel for the General Counsel represents that Jt. Exh. 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ELECTRONIC COMMUNICATION POLICY
Computers, laptops, internet access, voicemail, electronic
mail (email), Blackberry, cellular telephones and/or other
Company equipment is 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.
. . .
Prohibited activities
Employees are strictly prohibited from using the computer,
internet, voicemail and email systems, and other Company
equipment in connection with any of the following activities:
. . .
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.
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 prohibits employees from using the email
system for non-business purposes in order to protect against:
computer viruses, the transmission of inappropriate infor-
mation, 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 nonbusiness purposes is
to prevent computer viruses from contaminating the call center.
2. Analysis
a. Respondent’s Electronic Communication Policy interfered
with 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 nonbusiness use of the company
email system that is broad enough to encompass employees' use
of the email system for Section 7 activities during nonworking
time. Under the standard set forth in the Board’s remand deci-
sion, 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.
In this case, the Respondent has declined to attempt to estab-

6 Sec. 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 ex-
ercise of the rights guaranteed in section 7 [section 157 of this ti-
tle].
Section 8(a)(1), 29 U.S.C. Sec. 158(a)(1).
lish special circumstances to rebut the presumption that it vio-
lated the Act. By letter dated February 3, 2015, the Respondent
represented to me that it would not be “submitting any argu-
ment to the Administrative Law Judge either by brief or other-
wise, contending that special circumstances, as defined in the
Board’s decision, exist to justify the business use only re-
striction 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 pre-
sumption, and has not done so, I find that the Respondent’s
electronic communications policy violates Section 8(a)(1) of
the Act.7
In reaching the conclusion that the Respondent’s policy vio-
lated the Act, I considered the testimony of Monette and Fer-
ron, 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 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 cir-
cumstances exist to justify the restrictions. Thus the Respond-
ent has not rebutted the presumption that those restrictions are
unlawful.8

7 Subsequent to the remand, the Respondent submitted a brief argu-
ing that the Board erred by overturning Register Guard, supra, replac-
ing 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 Board or the Supreme Court. See
Pathmark Stores, 342 NLRB 378 fn. 1 (2004); Hebert Industrial Insu-
lation 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 modifica-
tions to elements of the Board's remand decision.
8 Given that it is the Respondent's burden to articulate special cir-
cumstances 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 argu-
ing 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 ad-
PURPLE COMMUNICATIONS, INC. 5
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 presump-
tively violated employees' Section 7 rights and the Respondent
has not established special circumstances that rebut that pre-
sumption. 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 Nei-
ther the General Counsel nor the Respondent has joined the
Charging Party’s call for a further hearing or the submission of
additional evidence.
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 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., re-
quiring the Respondent to read the Board notice to employees)
are warranted.
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 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 electron-
ic communications policy is unlawful to the extent that it re-

dressing confidentiality and inappropriate communications) are inade-
quate. 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 swal-
low 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 with-
out 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.”
stricts 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 enti-
tled to use the system to engage in statutorily protected discus-
sion . . . while on nonworking time), slip op. at 15 (“the pre-
sumption 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 Respond-
ent'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 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.
CONCLUSION OF LAW
The Respondent has violated Section 8(a)(1) of the Act since
June 19, 2012, by maintaining an overly broad electronic com-
munications policy that unlawfully restricts 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 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 deci-
sion, 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 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 that (1) advises that
the unlawful electronic communications policy has been re-
scinded, or (2) provides a lawfully worded electronic commu-
nications policy on adhesive backing that will cover the one
containing the unlawful email restrictions; or publish and dis-
tribute to employees revised employee handbooks that (1) do
not contain the unlawful electronic communications policy, or
(2) provide a lawfully worded electronic communications poli-
cy. World Color (USA) Corp., 360 NLRB No. 37, slip op. at 2
(2014) (citing 2 Sisters Food Group, 357 NLRB 1816, 1823 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 re-
garding the handbook provision previously found unlawful in
this case).
The General Counsel and the Charging Party both seek an
order requiring that the notice posting be directed not just to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 main-
tained companywide. See Guardsmark, LLC, 344 NLRB 809,
812 (2005), enfd. in relevant part 475 F. 3d 369 (D.C. Cir.
2007). In this case the record 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 com-
panywide. See, supra, footnote 5. Therefore, companywide
posting is not appropriate. Indeed, earlier in this litigation, 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 hand-
book's effectiveness at those two locations. Id., slip op. at 1 fn.
4, 5 fn. 18 and 4 fn. 22.
ORDER
The Respondent, Purple Communications, Inc., Corona and
Long Beach, California, its officers, agents, successors, and
assigns, shall
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 the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the overly broad electronic communications pol-
icy in its employee handbook.
(b) Furnish employees with an insert for the current employ-
ee handbook that (1) advises that the unlawful electronic com-
munications policy has been rescinded, or (2) provides a law-
fully 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 elec-
tronic communications policy, or (2) provide a lawfully worded
electronic communications policy.
(c) Within 14 days after service by the Region, post at its Co-
rona and Long Beach, California, facilities copies of the at-
tached notice marked “Appendix.”10 Copies of the notice, on
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 con-
secutive 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

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic 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 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.
Dated, Washington, D.C. March 16, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain an overly broad electronic communi-
cations 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, re-
strain, 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 commu-
nications 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 re-
strictions; or WE WILL publish and distribute to you revised
employee handbooks that (1) do not contain the unlawful elec-
tronic communications policy, or (2) provide a lawfully worded
electronic communications policy.
PURPLE COMMUNICATIONS, INC.
PURPLE COMMUNICATIONS, INC. 7
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.
ATTACHMENT A
Robert L.=
Diascn 949.79‘.5.7
DIRECT PA. 999.79P5=7
rhneptuartkane.com
Stuart Kane LLP
6. NEWPORT CENTER DIITT,SUITS 2.00
NEWPORT BEACH, CALIFORNIA 9ORSO
February 3, 2015
Via Overnieht Davos,
Honorable Paul Bogen
Administrative Law Judge
Washington, D.C. Office
1099 14th Street, NW, Room 5400 East
Washington, DC 20570-0001
94,79,...
PAX: 94,79,SzOo
www.atuartkane.com
Re: Purple Communications Inc and Communications Workers of America AFL-C!O
Cases: 21-CA-095151; 21-m491531; and 2141C-091584
Dear Judge Bops:
As I informed your honor and counsel for the other parties in this matter in our
conference call today, Respondent Purple Communications, Inc. will not be presenting my
additional evidence on the special circumstances issue remanded by the Board for hearing in the
above-referenced case.
Respondent also will not be mbmitting any argument to the Administrative Law Judge
either by brief or otherwise, contending that special circumstances, as defined in the Board's
decision, exist to just* the business use only restriction that Respondent places on non-working
time use of its e-mail system by employees.
V truly yours, zx
obeR J. Kane
RJK:bew
cc: NLRB Division of Judges, Washington D.C. [Ovemight Delivery]
Cecelia Valentine [Via E-mail: cecelia.valentine@MIth.gov]
David A. Rosenfeld [Via E-mail: drosenfeld@unioncounseLnet]
01312.1 /10110.001/