NLRB Email Decision

David Keene, II
January 23, 2008 — 1,967 views  
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At a time when the labor movement is working to increase its ranks, unions are increasingly relying on e-mail and web pages to spread their message and organize new members. While an employer's ability to monitor traditional methods of communication – print and oral – and in-person solicitation has been the subject of numerous National Labor Relations Board (“NLRB” or “Board”) decisions, until now the Board had not addressed the rules regulating electronic workplace conduct vis a vis the National Labor Relations Act (the “Act”). In The Guard Publishing Co. d/b/a The Register Guard, 351 NLRB No. 70 (2007), the Board did just that, giving employers a significant victory by holding that employees have no statutory right to use an employer's equipment or media for communications about any union activity, including Section 7 rights (often known as organizing rights). Under the Board's ruling, employers may lawfully establish policies that prohibit or restrict use of the company's e-mail system for non-work-related purposes, including union-related activities. Additionally, the Board established a new, narrower standard for analyzing discrimination under the NLRA. The new definition is an absolute boon to employers: an employer's communications policy discriminates against union-related communications only if the policy as stated or as applied bars or restricts those communications but does not treat similar communications about other membership organizations in an equal manner. The Board's new discrimination standard may have broader implications, affecting not only an employer's ability to regulate e-mail communications, but it may also empower employers to regulate more restrictively traditional means of communication and solicitation using company property, such as company bulletin boards and telephones. Background and Facts At issue was the following rule: Company communication systems and the equipment used to operate the communications system are owned and provided by the Company to assist in conducting the business of The Register-Guard. 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. Company employees used e-mail to communicate about work related matters, but also communicated about non-work related personal matters (including jokes, parties, etc.) Employees did not use the e-mail system to solicit support for any outside cause or organization (other than the Company's annual United Way campaign). The union president sent three e-mails: one asked for clarification of a Company communication; the other two urged union members to wear green on a certain date to support the union's bargaining position and to participate in the union's entry in a town parade. Each email resulted in discipline. Following the disciplinary action, the Union filed an unfair labor practice charge. An administrative hearing was held before an Administrative Law Judge who held that the discipline was unlawful under the Act. The NLRB reversed the ruling in part. The NLRB’s Decision and Order The Board held that the company’s policy itself was not discriminatory. The Board held that the policy, which prohibited the use of the e-mail system for non-work-related solicitations, was consistent with Board precedent holding that employees do not have a right under the Act to use employer-owned equipment for union business. The NLRB cautioned that while an employer may prohibit employee use of e-mail for union-related communications, it must do so in a neutral, non-discriminatory manner. Accordingly, the Board analyzed whether the newspaper's discipline of the employee for sending union-related e-mails was discriminatory as the employer allowed use of its e-mail system for non-work-related purposes, and the employer’s periodic solicitation in support of the United Way. The Board held that the employer’s discipline of an employee for using the e-mail system to clarify an issue was discriminatory and violated the Act. The Board held the e-mail did not “solicit” anyone or anything, and therefore did not contravene the employer’s policy. Because the substance of the e-mail was union-related, however, her discipline was held to be discriminatory and in violation of the Act. Alternatively, the Board held that the two e-mails regarding union positions contained solicitations to participate in Section 7 activities, and therefore violated the Company’s policy. Since the employer had consistently prohibited all non-work-related solicitations, the mere fact that the subject matter of the e-mail was union business, was irrelevant. Reversal of Precedent What makes this decision such a gain for employers is that the Board overturned its precedent, which had held that where an employer allows employees to use communications equipment for any non-work-related purpose, the employer must permit employee use of such equipment for union-related purposes. Under the Board's prior rulings, for example, where an employer allowed use of a bulletin board or the telephone for non-work-related reasons regardless of their nature – such as solicitations for charitable contributions, or the sale of personal items – the employer also would be required to permit use of such equipment for union-related activities. As almost every employer allows employees to use company equipment for some communications unrelated to work this broad definition of "discrimination" prevented employers from enforcing restrictions on union-related communications using company property. Instead, the Board adopted the discrimination standard articulated by the United States Court of Appeal for the Seventh Circuit in two opinions denying enforcement of two Board rulings that had applied the broad standard described above. The Seventh Circuit's narrower definition of "discrimination" requires "unequal treatment" of similar communications; thus, union-related communications must be compared, not to personal communications such as party invitations, but to non-work-related communications of a similar character, such as employees' anti-union communications or solicitations pertaining to other non-charitable groups or organizations. The Board Provides Employers with Leeway Under the Board's new, narrower standard of discrimination, an employer is permitted to choose what categories of communications to allow and disallow provided the distinction is not premised on or motivated by animus against Section 7 communications. As examples, the Board explained that an employer could lawfully draw the line between charitable solicitations and non-charitable solicitations, personal solicitations (e.g., sale of a car) and commercial solicitations (e.g., sale of Avon products), and personal invitations and organizational invitations, even if this line drawing has the incidental effect of barring or restricting union-related communications. The Board noted that employees continue to "have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas," but employers are not required to yield property interests to provide employees with more convenient or more effective means of solicitation. The majority concluded that, "absent discrimination, employees have no statutory right to use an employer's equipment or media for Section 7 communications." Advice for Employers To take full advantage of this ruling, I recommend that employers take the following action: • Carefully develop and consistently and strictly enforce your electronic communications policies. Fortunately, you don’t have to prohibit all personal e-mail usage, as such a prohibition would be extremely difficult to enforce in today's e-mail-driven world. • Determine whether your existing policies on workplace communications are consistent with the Guard Publishing decision, and, if not, revise the policies accordingly. • In revising an e-mail policy or preparing one for the first time, you must decide whether to impose a broad prohibition on e-mail use for all non-work-related purposes (which is very difficult to apply) or instead restrict certain categories of non-work-related e-mails, such as allowing charitable solicitations while prohibiting non-charitable solicitations (which would be significantly easier to administer). I strongly recommend that you elect to restrict certain categories of non-work-related emails. • Issue a new policy, or revise your current policy, soon—the sooner the better! If you create a new policy when you learn of a new campaign, or in the middle of a new campaign, the union will file an unfair labor practice complaint and the NLRB will almost certainly view the policy as anti-union. • Strictly enforce your existing email policy. As difficult as this may be, you need to consistently and constantly address violations of the policy; the Board's decision underscores consistent action. You can be assured that a union will test you by having pro-union employees send emails that violate your policy. If the policy is not enforced regarding nonunion-related e-mail, but is enforced regarding similar union-related e-mail, it will almost certainly give rise to an unfair labor practice charge. If you have any comment or questions about this or any other labor or employment law matter, please contact David Keene at 423.928.0181

David Keene, II

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David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.