NLRB Rules on Employee Use of Company Email for Union Purposes

Ever since the advent of email in the workplace, employers have sought guidance about whether they may lawfully prohibit employees from using company email systems to solicit other employees to support a union. However, since most employers permit employees to use company email for at least some personal communications, the concern has been that prohibiting employee use of email for union solicitations would run afoul of nondiscrimination rules under the National Labor Relations Act. In Guard Publishing Company, 351 NLRB No. 70 (December 16, 2007), the National Labor Relations Board finally addressed these issues.  

In Guard Publishing Company, the NLRB held that an employer may prohibit employees from using a company-owned email system to solicit for "non-job-related reasons," even if the employer had allowed employees to use the email system for various personal reasons such as giving away tickets or announcing the birth of a child. However, Guard Publishing, a 3-2 decision, was sharply divided along party lines, and the terms of office of two of the Board members in the majority (and one in the dissent) expired within days of the decision. Therefore, there is some real doubt about whether this decision will remain law when a new, full Board is constituted. There is also some doubt about whether portions of this decision will survive on appeal.  

Guard Publishing Company publishes The Register-Guard, a newspaper in Eugene, Oregon. Employees working in the newsroom and certain related departments are represented by an affiliate of the Communication Workers of America. Virtually all of those employees used the company’s email system. When it installed the email system, the employer implemented a "communications systems policy" which stated:
 

• Company communications 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.

Notably, the policy did not prohibit all non-job-related uses, and employees had for years used the system to communicate with each other about personal matters such as baby announcements, jokes, party invitations, offering sports tickets, organizing poker games and to make lunch plans. However, there was no evidence that employees had used the system to solicit other employees for commercial ventures, religious causes or any outside organization.

During protracted collective bargaining, the union’s president, a bargaining-unit employee, used the email system on three occasions: (1) to inform employees about an inaccuracy in a prior union communication concerning a union rally that had taken place the prior week; (2) to solicit employees to "wear green" in support of the union’s bargaining demands; and (3) to solicit employees to march with the union in a local parade to show further solidarity. The first of the emails was sent from the company-owned computer that the employee used at work; the second and third emails were sent from the union’s offices, but were addressed to other employees at their Register-Guard email addresses. The employer disciplined the union president for each of her three emails, although no solicitation was involved in the first of the three emails.

The Board ruled 3-2 that: (1) the employer’s communications systems policy was facially lawful; (2) the disciplinary action based on the emails soliciting support for the union’s bargaining positions was not unlawful, notwithstanding the employer having permitted other non-job-related uses of the system; and (3) the disciplinary action based on the informative (i.e., non-soliciting) email was unlawful.  

The three Republican members of the Board found the employer’s communications systems policy lawful. They reasoned that company-owned email systems are no different from company-owned telephone systems, bulletin boards, copiers or televisions. Just as an employer may limit the use of its bulletin boards, the majority held that an employer may limit the use of its email system.

The majority concluded that the employer did not have to justify its email policy, nor modify its policy to accommodate the right of employees to discuss union issues during non-working time. Instead, the Board focused on the fact that the email system is owned by the Register-Guard, and its employees had ample opportunities to talk during non-working time with one another about union issues. Thus, just as an employer who owns its bulletin boards and telephones need not allow employees to use those communications media for non-job-related reasons, the Register-Guard was not required to allow employees to use its email system for non-job-related purposes.

The dissent’s approach was fundamentally different and would, if adopted by a newly constituted Board, almost certainly dictate a different result. The dissent focused on the fact that email "cyberspace" is akin to the workplace itself or, as the dissent called it, a "natural gathering place." Since that is "where" employees do much of their communicating, the dissent would have the focus be on whether the employer’s communications systems policy "interfered" with Section 7 rights (because employees could not use it to solicit other employees on union issues). Since it did, the dissent would require the employer to demonstrate legitimate business reasons that outweigh the interference. Again equating cyberspace to the actual workplace, the dissent noted that this balancing approach is the approach the Supreme Court had approved more than 60 years ago in approving the Board’s long-standing rule that prohibitions against oral solicitations in the workplace during non-working time are presumptively unlawful.

The Board majority also held that the employer’s application of the policy was not unlawfully discriminatory, even though the Register-Guard had allowed employees to use the email system for a variety of personal matters. While the Board had, for years, held that an employer may not prohibit union postings on company bulletin boards while allowing personal postings, in its Register-Guard decision, the Board overruled that precedent and adopted the reasoning of two Seventh Circuit decisions holding that unlawful discrimination must reflect "unequal treatment of equals." The majority held 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." Noting that there was no evidence that any employee had ever used the email system to solicit on behalf of any kind of group or organization, and noting that the employer’s communications systems policy prohibited non-job-related solicitations, the Board majority concluded there was "no unequal treatment of equals." Also, the majority gave other examples of permissible "line drawing," stating that nothing in the Act prohibits line-drawing on "non-Section 7" bases such as: charitable solicitations versus noncharitable solicitations; personal solicitations (e.g., selling a car) versus commercial solicitations; invitations for an organization versus invitations of a personal nature; solicitations versus mere talk; and business versus non-business related uses. Notably, the Board cautioned that "if the evidence showed that the employer’s motive for the line-drawing was antiunion, then the action would be unlawful."

Applying this new test, the Board majority held that the Register-Guard had lawfully disciplined the union’s president because of her two emails that solicited other employees to take action (even though those emails originated outside the employer’s offices and from one of the union’s computers); and had unlawfully disciplined the union’s president as a result of the informational email that had not solicited employees to do anything. The majority noted that the employer’s communications systems policy did not prohibit all non-job-related communications, only "non-job-related solicitations."

It seems quite likely that the Register-Guard decision will be appealed by the union.  

Moreover, there is a significant risk that a Democratic Board would overrule at least some of this decision. Therefore, any employer adopting or modifying its email policies may wish to carefully consider whether it may have to justify to a future Board the business reasons for its policies or show that it has not allowed various kinds of personal email. These are issues that should be discussed with counsel.