NLRB LIMITS
EMPLOYEE USE OF EMPLOYER E-MAIL SYSTEMS FOR UNION PURPOSES
On December 16, 2007, the National Labor Relations Board,
in a 3-2 ruling, gave a major victory to employers by holding
that employers may prohibit employees from using its e-mail
system for any “non-job-related solicitations,”
including union-related communications. In so holding, the
NLRB provided long-awaited clarification to employers and
employees regarding the use of e-mail systems, and delivered
a setback to unions who viewed e-mail systems as an open
forum for employees to discuss their concerns.
Facts
of the Case: In The
Guard Publishing Company, d/b/a The Register Guard,
the employer had implemented a written policy stating: “Communications
systems are not to be used to solicit or proselytize for
commercial ventures, religious or political causes, outside
organizations, or other non-job-related solicitations.”
The employer was aware that its employees used its e-mail
system to send and receive personal messages, but there
was no evidence that employees used e-mail to solicit support
for or participation in outside organizations other than
the United Way, for which the employer conducted charitable
campaigns periodically.
An employee, who was also the union president, sent several
union-related e-mails to approximately 50 company employees
at their company-provided e-mail addresses, using the company’s
e-mail system. She received two written warnings for doing
so. In addition, during collective bargaining, the employer
proposed contract language providing that e-mail could not
be used for union business. The union argued that the employer’s
policy and position on non-business use of e-mail, as well
as the enforcement of the policy against the employee, were
violations of the National Labor Relations Act, in that
the employer discriminated against union status and conduct.
The NLRB’s Ruling:
The NLRB first addressed whether an employer can prohibit
the nonwork-related use of its e-mail system. It held that,
“An employer has a basic property right to regulate
and restrict employee use of company property.” The
NLRB recognized that in other cases in which it addressed
whether employees have the right to use other types of company
property, such as bulletin boards or telephones, for union-related
communications, it held that employers could restrict use
of such property as long as the restrictions are nondiscriminatory.
In the present case, the NLRB found that the written policy
was not discriminatory on its face and was therefore lawful.
The NLRB then turned to the issue of whether the policy
was being enforced in a discriminatory manner. The NLRB
adopted the reasoning of the U.S. Court of Appeals for the
Seventh Circuit in two cases involving the use of bulletin
boards, in which the court had distinguished between non-work-related
postings of a personal nature, such as wedding announcements,
birthday cards, and for-sale notices, and postings for “group”
or “organizational” purposes. The NLRB agreed
that an employer could draw such lines between permitted
and prohibited activities as long as the line is not based
on union status, even where the union always falls on the
prohibited side of the line. In so holding, the NLRB overturned
its prior holdings that employers violated the National
Labor Relations Act by prohibiting union use of company
bulletin boards and the like, where other non-business use
had been permitted. The NLRB determined that “the
Seventh Circuit’s analysis, rather than existing Board
precedent, better reflects the principle that discrimination
means the unequal treatment of equals.”
Lessons
Learned: In accordance with this
decision, employers are permitted to implement policies
prohibiting all non-business use or even permitting certain
types of personal use of their e-mail systems while prohibiting
others – but such limitations must be drawn thoughtfully.
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
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