NLRB Decision Permits Employers to Restrict Employee Use of E-mail

Our Recommendation: "Proceed Under Yellow"

On December 16, 2007, the National Labor Relations Board (NLRB) issued a decision (by a 3-2 vote) finding that it was not unlawful for an employer to have a policy prohibiting the use of its e-mail system for "non-job-related solicitations." The decision also modified longstanding NLRB law concerning discriminatory enforcement of policies concerning solicitation and distribution in a manner that broadens considerably the types of solicitation employers may permit while at the same time prohibiting solicitation on behalf of union causes.

As written, the decision appears to be a resounding victory for employers, and a huge setback to unions and union organizers who seek to use employer e-mail systems as an easy, free and effective means of carrying on organizing activities. However, the decision is almost certain to be appealed to a United States Court of Appeals, and employers are urged to proceed with caution as they consider amending e-mail policies in the work place.

The case is The Guard Publishing Company d/b/a The Register-Guard. The employer had a Communications Systems Policy governing employee use of, among other things, e-mail. The relevant portion of the policy stated:

"Company communication systems and the equipment used to operate [them] 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."

In the first part of its decision, the NLRB found that the policy was lawful as written, holding that since the e-mail system was employer property, the employer did not have to allow it to be used for purposes other than conducting the employer's business. The NLRB majority stated that just as employers have always been permitted to restrict employee access to such items as telephones and copy machines for non-business purposes, they may do so regarding e-mail systems as well, so long as the restrictions do not discriminate on the basis of rights protected by the National Labor Relations Act.

In the second part of its decision, the NLRB majority modified longstanding rules defining discriminatory enforcement of otherwise lawful solicitation and distribution policies. This part of the decision applies to much more than the use of e-mail systems. For many years, it has been the rule that if an employer permits solicitation/distribution for non‑business purposes (for example, baby showers, employees' church bake sales, sales of personal property among employees) the employer could not enforce an otherwise lawful policy against solicitation/distribution on behalf of union causes. In The Register‑Guard, the NLRB held that an employer does not need to permit union solicitation/distribution even if it permits solicitation/distribution for such personal causes as described above, as long as the distinction made by the employer is not simply to prohibit union activity. For purposes of illustration, the NLRB stated:

"…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 each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates [unlawfully]. For example, a rule that permitted charitable solicitations but not non‑charitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but would prohibit solicitations for Avon and [a] union."

Under law prior to The Register‑Guard, the NLRB had recognized a limited exception for a charitable solicitation conducted by an employer (United Way, for example), but had never permitted other non‑union exceptions that would still permit the employer to deny solicitation on behalf of union causes. In The Register‑Guard, the NLRB states that an employer may prohibit the use of e-mail systems for union solicitation even though it permits solicitation for other non‑business purposes, so long as the distinction between permitted and prohibited solicitations is not designed simply to prohibit union solicitation.

This is a major departure from past NLRB precedent. The NLRB claims that this new ruling is supported by decisions of the United States Court of Appeals for the 7^th Circuit, which has jurisdiction over employers located in Indiana, Illinois and Wisconsin. However, the majority decision appears to many to be an attempt to support policies that will restrict unions' ability to organize by restricting pro-union communications in the workplace.

The majority's decision provoked a vigorous dissent by the two remaining members of the NLRB. It is a virtual certainty that union interests will appeal this decision to a court of appeals and, in the meantime, may seek to have legislation introduced in Congress that would have the effect of overturning it. The ultimate fate of this decision is far from certain. Despite the green flag waved by the NLRB majority, employers are advised to "proceed under yellow."

Michael Boldt is a partner at Ice Miller LLP. His primary area of practice is labor law on the management side, including responding to union organizational drives, collective bargaining, arbitration, employee discipline, construction labor law, and equal employment opportunity law.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.