In a decision that warrants careful consideration by employers, a three/two majority of the National Labor Relations Board (NLRB) recently held that an employer did not violate the National Labor Relations Act (NLRA) by maintaining an e-mail policy that prohibited employees from using its e-mail system to send “non-job-related solicitations.”
In a decision that warrants careful consideration by employers, a three/two majority of the National Labor Relations Board (NLRB) recently held that an employer did not violate the National Labor Relations Act (NLRA) by maintaining an e-mail policy that prohibited employees from using its e-mail system to send “non-job-related solicitations.” See Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007, released Dec. 21, 2007).
The Board majority held that although the e-mail policy was not unlawful as written, the employer discriminatorily enforced the policy by disciplining an employee for sending an e-mail that discussed union-related issues but did not solicit employees to take action. However, the Board majority held that the employer did not violate the Act by disciplining the employee for sending e-mails that solicited employee action in support of the union. The Board majority made the distinction in this case because, while the employer prohibited all non-job-related solicitations, it permitted employees to use its e-mail system for some non-work-related e-mails.
Employer’s Policy Did Not Violate NLRA
The employer’s e-mail policy stated, in part:
Company communication systems and the equipment used to operate the communication 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.
In finding that the employer’s e-mail policy did not violate the NLRA, the Board majority held, “consistent with a long line of cases governing employee use of employer-owned equipment, we find that the employees here had no statutory right to use the Respondent’s e-mail system for Section 7 matters.” The Board majority noted that employers have a basic property right to regulate and restrict the use of company property and that the employer’s communications system, including its e-mail system, is the employer’s property.
The Board majority compared this situation to other cases in which it has held that employees have no Section 7 right to use an employer’s property such as bulletin boards, telephones, and televisions, as long as the restrictions are nondiscriminatory. The majority refused to adopt the more stringent analysis that is applied where an employer prohibits all solicitation at any time on its premises. The Board majority noted that the employer’s e-mail policy did not regulate face-to-face solicitation and that employees could still engage in oral solicitation during non-working time and could distribute literature during non-working time in non-work areas.
Thus, the Board majority held that the employer may lawfully prohibit employees from using its e-mail system for non-work-related purposes, unless the employer acts in a manner that discriminates against Section 7 activity.
Discriminatory Enforcement of E-Mail Policy
In analyzing whether the employer discriminatorily enforced its e-mail policy, the Board majority held that “discrimination means the unequal treatment of equals.” Thus, the Board majority clarified that “unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” Under this standard, “an employer would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.” In either situation, the employer has distinguished between permissible and impermissible activities on Section 7 grounds.
In this case, the employer prohibited employees from using its e-mail system for all non-job-related solicitations. Accordingly, it did not violate the Act by disciplining an employee for using its e-mail system to solicit employees to take action to support the union, according to the Board majority. Significantly, however, because the employer allowed employees to use its e-mail system to send non-job-related e-mails other than solicitations, it violated the Act by disciplining the employee for sending a union-related e-mail that did not solicit employees to take action since the only difference between this e-mail and those for which employees were not disciplined was that this e-mail was union-related.
Employers’ Bottom Line
Overall, this decision is good news for employers because it treats electronic communication systems, including e-mail systems, the same as other types of employer property. Thus, employees have no “right” to use the employer’s e-mail system for Section 7 purposes. Additionally, in the view of the Board majority, employers do not violate the NLRA merely by prohibiting the use of e-mail systems for non-work-related purposes or by permitting some non-work-related uses while prohibiting others, as long as Section 7 is not the basis for distinguishing between permissible and impermissible uses.
However, the key is to ensure that e-mail policies are not discriminatorily enforced. Disciplinary actions relating to improper employee use of the employer’s e-mail system must be based on nondiscriminatory reasons and not based solely on the fact that the e-mail relates to Section 7 activity. This will be a challenge at some companies where management allows employees to use e-mail to communicate about personal matters (e.g. parties, luncheons, showers) and to discuss politics, sports, and current events. In fact, unions may contend that under Guard Publishing, in order lawfully to prohibit communications by employees concerning facts about a union that do not rise to the level of a solicitation to take some action in support of the union, an employer would need to enforce a policy which prohibits all non-work- related e-mails on company systems.
It should be noted that this decision leaves open the possibility that a different standard may be applied in workplaces in which employees communicate exclusively or almost exclusively through e-mail. However, the Board majority did not specifically rule on this factual situation. It also should be noted that this decision is a three/two decision and could be reversed by a future Board appointed by a different President.
If you have any questions regarding this decision or labor related issues in general, please contact the Ford & Harrison attorney with whom you usually work or Jerry Coker, jcoker@fordharrison.com, 404-888-3820 or Rick Warren, rwarren@fordharrison.com, 404-888-3828, partners in our Atlanta office.