• NLRB Rules Employers May Prohibit Use of Company E-Mail for Union Activity
  • March 10, 2008
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • In a highly anticipated decision for both union and nonunion employers, the National Labor Relations Board (“Board”) recently ruled, in The Guard Publishing Co. d/b/a The Register Guard,1 that an employer does not violate the National Labor Relations Act (“Act”) by maintaining a policy that prohibits the use of the company’s e-mail system for “non-job related solicitations,” including union messages.

    In The Guard Publishing, the employer, a daily newspaper publisher, disciplined a union employee for sending e-mails pertaining to, among other things, a union rally and upcoming collective bargaining negotiations. The employer determined that the e-mails violated the following policy:

    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.

    The employee and his union challenged the discipline, arguing that because e-mail has become the most common “gathering place” for employees to communicate about work and nonwork issues, employers do not have an unfettered right to ban personal e-mail just because the employer owns the computer system. The employee and the union further argued that because e-mail is similar to face-to-face solicitations that occur in an employee break room or lunchroom, such communications cannot be restricted during nonwork time. The employer, on the other hand, argued that the union has plenty of other ways to communicate and that Section 7 of the Act does not provide employees with a statutory right to use employer-provided e-mail systems for any purpose.

    In a split decision, the Board rejected the union’s argument that e-mail is analogous to face-to-face interaction. Instead, the Board found that e-mail is like all other forms of communication that the Board has previously ruled can be restricted (i.e., bulletin boards and telephones). In agreeing with the employer, the Board held that employees do not have a statutory right to use their employer’s e-mail system for communications that fall within those covered by Section 7, emphasizing that the Act protects organizational rights, not the particular means by which employees seek to communicate. Because employees continue to have the full panoply of rights to engage in oral solicitation on nonworking time in nonwork areas, the Board rejected the suggestion that an exception should be carved out for e-mail.

    Even though the Board’s decision in The Guard Publishing sets forth that employers have a “basic property right” to regulate and restrict employee use of company property, the NLRB cautioned that this right is not without limitations. The NLRB made clear that policies prohibiting the use of e-mail for nonbusiness purposes must not discriminate against activities or communications of a similar character because of their union or other Section 7 protected status. Therefore, employers may draw the line between:

    • Charitable solicitations and noncharitable solicitations;
    • Solicitations of a personal nature (a car for sale) and solicitations for commercial sale of a product (Avon products);
    • Invitations for organizations and invitations of a personal nature; or
    • Business-related use and nonbusiness-related use.

    However, an employer violates the Act if employees are permitted to use e-mail to solicit for one union but not another or if solicitation by anti-union employees is permitted but solicitation by pro-union employees is not permitted.

    What Does the NLRB’s Decision in The Guard Publishing Mean for Employers?

    Union and nonunionized employers that want to take advantage of the NLRB’s new decision must carefully develop and consistently enforce their electronic communications policies. These policies, if properly drafted, may restrict union messages. Moreover, for nonunion employers to maintain their nonunion status, such policies serve as a simple check against the recent push by unions to increase their membership across the country and the fact that e-mail has become the most common and often effective means of communicating in the workplace.