iResolving a significant issue created by technological changes in the workplace, the National Labor Relations Board (“NLRB” or the “Board”) has addressed whether an employer may prohibit employees from disseminating prounion messages via its e-mail system. In a 3- 2 decision, the Board ruled in The Guard Publishing Company, 351 NLRB No. 70 (2007), that the National Labor Relations Act does not provide employees with a right to use an employer’s e-mail system for union-related purposes. As a result, the Board concluded that an employer may lawfully bar union-related use of its e-mail system as part of a broader policy that does not discriminate specifically against unions. The ruling allows an employer to restrict union solicitations even if the employer otherwise permits employees to send and receive personal e-mails.
The Facts
The Guard Publishing Company (the “Company”), publisher of the Register- Guard newspaper in Eugene, Oregon, employed approximately 150 members of a union, the Eugene Newspaper Guild. In 1996, the Company adopted a policy governing the use of its e-mail system. The policy provided: “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 nonjob- related solicitations.”
The Company’s employees regularly sent and received e-mail regarding work-related matters. In addition, employees used e-mail for personal messages including birth announcements, party invitations, offers of sporting event tickets, and requests for services such as dog walking. The Company was aware of and permitted these nonworkrelated e-mail messages. Other than solicitations for the United Way, for which the Company conducted charitable campaigns, there was no evidence that employees used e-mail to solicit participation in or support for any outside organization or cause.
In 2000, the Company issued written warnings to Suzi Prozanski, a Company employee and president of the union, for three union-related e-mails that she had sent to her fellow members at their Company email addresses. On May 4, she sent an email discussing a union rally that had taken place earlier in the week. On August 14, she sent an e-mail urging employees to wear green to show their support for the union during negotiations. On August 18, she sent an e-mail encouraging employees to participate with the union in an upcoming town parade. The union filed an unfair practice charge challenging, among other things, the e-mail policy and the written warnings.
The NLRA
Section 7 of the National Labor Relations Act (“NLRA”) provides, in relevant part, that employees “have the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under the NLRA, an employer engages in an unfair labor practice if it interferes with an employee’s Section 7 rights (Section 8(a)(1)) or discriminates against an employee in order to “encourageor discourage” union membership (Section 8(a)(3)).
The ALJ Decision
The Administrative Law Judge (“ALJ”) ruled that the Company’s email policy did not violate the NLRA. He determined, however, that the Company discriminated in violation of the NLRA by issuing written warnings to Prozanski for her union related e-mails while permitting other employees to send and receive other nonwork-related e-mails. The Company and union filed exceptions to the decision.
The NLRB
The NLRB considered whether the Company’s e-mail policy prohibiting “non-job-related solicitations” violated the NLRA. To resolve this question, the Board had to decide an issue of first impression: “[w]hether employees have a specific right under the [NLRA] to use an employer’s email system for Section 7 activity.” The Board explained that the Company’s “communications system, including its e-mail system, is the [Company’s] property and was purchased by the [Company] for use in operating its business.” Therefore, as long as the Company did not discriminate against union activity, it was not required to permit unionrelated e-mail.
The NLRB distinguished this case from Supreme Court precedent preventing employers from barring all solicitations, including union solicitations, on their premises. According to the NLRB, the Company’s rule only restricted e-mail use, not face-to-face solicitation. While recognizing that “e-mail has, of course, had a substantial impact on how people communicate, both at and away from the workplace,” the Board asserted that it “has not eliminated face-to-face communication among the [Company’s] employees or reduced such communication to an insignificant level.” Thus, the Board observed, barring e-mail solicitation is not the equivalent of barring all solicitations.
The Board then considered whether the Company’s enforcement of the email policy was discriminatory. It acknowledged previously ruling that an employer that permits its communications equipment to be used for nonwork purposes cannot properly bar use of the equipment for union activity. Nonetheless, the Board determined that that approach “fail[ed] to adequately examine whether the employer’s conduct discriminated against Section 7 activity.”
According to the NLRB, “discrimination means the unequal treatment of equals.” Therefore, “an employer clearly would violate the [NLRA] 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 prounion employees.” In contrast, “an employer may draw a line between charitable solicitations and non charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business related use and non-business-related use.” In short, an employer can prohibit union communications as part of a ban on all “communications of a similar character.” Applying this reasoning, the Board determined that the Company was permitted to discipline Prozanski for her August 14 and 18 e-mails asking employees to take action in support of the union because, although the Company permitted personal e-mails, there was no evidence that it permitted the use of e-mail to solicit support for any organization or group. The NLRB reached a different conclusion regarding Prozanski’s May 4 e-mail, which it characterized as merely an account of facts about a union rally and not a solicitation. Given that the Company permitted other nonwork-related e-mails, it could not prohibit ones simply because they related to the union. Thus, the Company violated Section 8(a)(1) and (1) by issuing a warning to Prozanski for her May 4 e-mail.
Conclusion
Employers should already have policies in place governing employee use of e-mail. In light of the NLRB's Guard Publishing decision, employers should also consider prohibiting nonwork-related e-mails that solicit support for any cause or organization. Employers must ensure that its e-mail policy is enforced in an even-handed and non-discriminatory manner.
