NLRB Permits Employers to Restrict Union Email Solicitations

On December 21, 2007, the National Labor Relations Board released its long-awaited decision on the issue of whether an employer may restrict employees from using company email systems for union-related solicitations. The case, The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007), had been pending for more than seven years.

In its decision, the Board held, by a 3-2 vote, that employees have no statutory right to use their employe’s email system for union-related communications. Thus, employers may institute and enforce policies prohibiting the use of the company’s e-mail system for non-work-related solicitations, including union-related solicitations. While employers may not enforce such policies in a discriminatory manner so as to prohibit only union-related solicitations, the Board relaxed its standard for determining whether an employer has applied its policy in a discriminatory manner.

The employer in The Register-Guard case had an email policy that prohibited the use of its email system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” The employer invoked this policy to discipline an employee who used the email system to send pro-union solicitations to her co-workers.

The employee and the union challenged the disciplinary action, arguing that the employee had a statutory right to use the email system for union-related communications, particularly during non-working time. In addition, the employee and union argued that the employer had not uniformly enforced its policy, and had permitted other non-work solicitations while unlawfully discriminating against union solicitations. Indeed, the evidence showed that the employer “tolerated personal employee e-mail messages concerning social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or other similar personal items.” The employer also permitted solicitations in support of the United Way.

In its decision, the Board first held that employers have a “basic property right in their email and other communications systems, and may restrict the use of such systems to protect their property interests.” For example, employers may wish to preserve server space, protect against computer viruses and dissemination of confidential information, and avoid liability for employees in appropriate e-mails. Thus, the Board concluded, employees have no absolute right under the National Labor Relations Act to use email systems for union-related solicitations.

Next, the Board examined whether the employer had lost its right to enforce its policy against union-related solicitations by virtue of the fact that it had allowed other non-work solicitations. Under the Board’s prior decisions, if an employer permitted personal solicitations, even for such innocuous solicitations as sales of Girl Scout cookies, it would lose its right to prohibit union-related solicitations. In The Register-Guard, the Board abandoned this standard of review and instead adopted the approach of the federal Court of Appeals for the Seventh Circuit. Under that standard, an employer loses its right to prohibit union-related solicitations if it permits other communications “of a similar character.”

Under this standard new, the Board explained, “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 The Register-Guard, there was no evidence that the employer permitted employees to use email to solicit other employees to “support any group or organization other than the United Way.” With regard to the United Way solicitations, the Board explained, employers do not discriminate “by permitting a small number of isolated beneficent acts as narrow exceptions to a no-solicitation rule.” Thus, the Board concluded, the employer did not unlawfully discriminate against union solicitations.

It should be noted that the employees in The Register-Guard did not communicate with each other exclusively through email. In such a case, where employees had no other effective means of communication amongst themselves, the Board might reach a different result.

Given that email has become the preferred method of communicating for many employees, the NLRB’s decision is of great significance. In addition, the Board’s holding would appear to apply to other communications involving company property, such as bulletin boards and telephone systems. Employers must ensure, however, that their policies regarding solicitations in general, and email in particular, are properly drafted. Such policies should be reviewed by legal counsel. In addition, in order to retain the right to forbid union-related solicitations, employers must consistently enforce their policies. Should an employer disparately enforce its policy to forbid only pro-union communications, it may be the subject of a discrimination charge.

While the NLRB’s decision is a great boon for employers, it may be appealed to a federal appellate court. In addition, should the political composition of the Board change, the Board may revisit its decision and reach a different result. The Board’s decision was decided by a narrow margin on partisan grounds, and the Board has a history of reversing itself over time when deciding politically contentious issues. Finally, it is possible that a sympathetic Congress could attempt to enact legislation to override the Board’s decision.

Should you have any questions about the NLRB’s decision, or should you need assistance in developing relevant policies, please feel free to call upon us.