• Old Pitfalls - Bulletin Boards and Other Methods of Communication
  • April 22, 2009 | Authors: Thomas Y. Mandler; Scott M. Gilbert
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Beyond e-mail communication, employers often provide a number of other media through which employees can communicate. From bulletin boards to internal newsletters, employees often use these forms of communication to, for example, post baby announcements, sell Girl Scout Cookies and, perhaps, organize.

    The NLRB has “consistently held that there is ‘no statutory right . . . to use an employer's equipment or media,’ as long as the restrictions are nondiscriminatory.” In Mid-Mountain Foods, 332 NLRB 229, 230 (2000), order enforced, 269 F.3d 1075 (D.C. Cir. 2001), the Board ruled that there was no statutory right to use a television in the employer’s break room to show a pro-union campaign video. In Eaton Technologies, 322 NLRB 848, 853 (1997), the NLRB ruled that “[i]t is well established that there is no statutory right of employees or a union to use an employer's bulletin board”; and in Champion International Corp., 303 NLRB 102, 109 (1991), it stated that an employer has “a basic right to regulate and restrict employee use of company property,” which, in that case, was a copy machine. In Churchill's Supermarkets, 285 NLRB 138, 155 (1987); order enforced, 857 F.2d 1474 (6th Cir. 1988), cert. denied 490 U.S. 1046 (1989), the Board recognized that an employer has “every right to restrict the use of company telephones to business related conversations.” Similarly, in Union Carbide Corp., 259 NLRB 974, 980 (1981); order enforced in relevant part, 714 F.2d 657 (6th Cir. 1983), the NLRB ruled that an employer “could unquestionably bar its telephones to any personal use by employees.”

    An employer’s policies pertaining to employee use of employer provided communication media should be written with due consideration given to whether the policy treats unions less favorably than other, similar organizations. Employers “should look for disparate treatment of union postings” to determine whether a policy, or the manner in which the policy is enforced, poses a risk for a potential violation of section 8(a)(1) of the NLRA. In other words, does the policy treat union activity differently than other, similar forms of organizational activity? If so, either with regard to how the policy is drafted or enforced, the employer runs the risk of violating the NLRA.