Purple Haze, Seeing Red and Feeling Blue: The NLRB’s Crippling Overreach in Two Recent Actions

The National Labor Relations Board’s two recent actions cast aside decades of established practice and precedent. This disregard for the legal wisdom of consistency has become the norm for the three left-wing members who rule the NLRB.


Yesterday, in a case identified as Purple Communications, the Board issued a decision that amounts to a taking of business property, both physical and intellectual property.

The Board mandated the use of businesses’ computer systems and email lists to organize an opposition to the business. In other words, government is forcing businesses to contribute to outside groups who fully intend to struggle immediately against these businesses at the bargaining table.

This Board recognizes the property right of the business and then knowingly subverts it. The majority simply states that Section 7 rights to unionize are more important now, though the NLRB decided just the opposite a decade ago.

Furthermore, Member Johnson points out that with social media and data mining and other modern communications tools, the use of company email lists is even less necessary than it was ten years ago.


Today the Board voted for a new regulation (rule) to hasten the procedure for unionizing.

I am taken with the extraordinary description by NLRB Board Members Miscimarra and Johnson of the new rule,

“The Final Rule has become the Mount Everest of regulations: massive in scale and unforgiving in its effect.”

The rule’s ambush speed will routinely hamper the workers’ understanding of the issues. Eighteen United States Senators commented on the proposed rule, noting,

“[T]hen-Senator John F. Kennedy stated that it was essential to allow ‘at least a 30-day interval between the request for an election and the hold of an election’ in order to ‘safeguard against rushing employees into an election where they are unfamiliar with the issues.’”

Ironically the rule will thwart the rule’s stated goal to increase understanding of and participation in the unionization process. I have to agree with the 18 U.S. Senators who commented,

“The proposed rule will impact the ability of employees to make a well-informed choice because the obvious effect of the [rule] is to limit the ability of an employer to communicate with its employees regarding an upcoming election.”

Workers’ time to study for the huge, life-changing decision ought not to be curtailed. In fact, the decision affects many people, including those who have never worked at the business.

Only 7.3% of workers have ever voted for their union. The union vote has lasting effects on new employees.

The current average of 38 days from notice to election is certain to be cut drastically. That was indeed the whole point of this rulemaking.

The concern is that unions will have years to work on unionizing, and at the least opportune time for the business, the union will file for an election.

Businesses will have about 7 days to prepare a response to the Board. It is easy to envision that businesses’ education of workers as to the effect of unionization may wind up taking a back seat to legal compliance in the form of hiring lawyers to send a response to the NLRB.

This new rule initiates a practice aptly described as “vote now, understand later.” Additionally, the curtailment of protected speech and due process—twice rejected by the U.S. Congress—is termed “election now, hearing later.”

The rule mandates delivery of all employees’ personal email addresses and phone numbers, putting employees at risk of identity theft, cyber harassment, cyber stalking, and telephone harassment.

The dissent of Members Miscimarra and Johnson points out the Board’s hypocrisy in this rule when juxtaposed with yesterday’s decision in Purple Communications,

“[T]he Final Rule’s justification for these expanded disclosure requirements (the importance of personal email and cell phones to protected concerted activity in the workplace, given the ‘prevalence’ at ‘work’ of ‘cell phones,’ which have become ‘the preferred mode of communication for many young people’) is irreconcilable with Purple Communications, 361 NLRB No. 126 (2014), where the Board majority insists that ‘social media, texting, and personal email accounts’ are not even ‘germane’ because they ‘simply do not serve to facilitate communication among members of a particular workforce’ (emphasis added).

Furthermore, in the name of modernizing representation elections, the Board has eschewed standard modern protections for people:

Moreover, the Final Rule adopts the expanded disclosure requirements without any employee ‘opt-out’ right regarding such information. The Rule even rejects privacy-enhancement measures as simple as requiring an ‘unsubscribe’ link in election-related texts and emails, notwithstanding the current widespread use of such measures in other third-party communications.

I welcome the statement by U.S. House of Representatives Education and the Workforce full and subcommittee chairs John Kline and Phil Roe that,

“This administrative overreach will stifle employers’ free speech, cripple workers’ free choice, and jeopardize the privacy of workers and their families. It will completely upend an election process that has worked well for decades, one that is fair and designed to foster agreement.

The American people want policies that will set us on the path to a stronger economy, more jobs, and higher wages for working families. This misguided ambush election rule will pull our country in the opposite direction. Congress cannot stand by and let [this rule’s ill effects] happen. The committee has been leading the fight against the president’s radical labor board, and rest assured, we will continue to do so.”

Groups will be fighting these two NLRB actions for some extended period of time, assuredly.