The National Labor Relations Board (NLRB or Board) issued an important decision concerning employee usage of company e-mail systems for purposes of union solicitation. In The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70 (2007), the Board narrowly held, by a 3-2 majority, that the Company did not commit an unfair labor practice by maintaining a policy that prohibited the use of e-mail for all “non-job-related solicitations.” The Board held that employees have no statutory right to use their employer’s e-mail system for Section 7 purposes (such as union organizing or engaging in other protected concerted activities). Additionally, the Board modified its approach regarding discriminatory enforcement of employer policies related to solicitation, postings on employee bulletin boards, and other forms of employee communications.

This case raises implications for every employer who either (1) has a union and is concerned about union or employee usage of e-mail or (2) is non-union and wishes to utilize its no solicitation and employee communication policies to help lawfully limit outside solicitations. If a non-union employer waits until union activity actually emerges and then revises its policies, those revisions may be deemed by the NLRB to be unlawfully motivated. Changes to a company’s employee communications policies, particularly no solicitation policies, should be carefully reviewed for legal compliance. 

The Guard is a unionized newspaper publisher. The Company’s employee communications systems policy (CSP) stated as follows:

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 non-job-related solicitations.

Notwithstanding the policy, the Company was aware that employees used the Company e-mail system to send and receive personal messages, including baby announcements, party invitations, offers of tickets to sporting events, etc. There was no evidence, however, that the Company allowed employees to use e-mail to solicit support for or participation in any outside cause or organization, other than the United Way, for which the Company conducted periodic charitable campaigns.

An employee of the Company, who was also president of the union, sent three e-mail messages to other employees using the Company’s e-mail system, for which she was disciplined. The first was entitled “Setting It Straight,” purporting to correct the record regarding a previous e-mail sent to employees by the Company’s Managing Editor. The union president received a written warning for violating the CSP by using e-mail for conducting union business.

The union president subsequently sent a second e-mail to employees, asking them to wear green to support the union’s position in negotiations, and a third e-mail asking employees to participate in the union’s entry in an upcoming town parade. She thereafter received another written warning for violating the CSP’s prohibition on “non-job-related solicitations.”

The Board considered whether the Company could lawfully maintain its CSP, and also whether the disciplinary warnings issued to the union president for violating the CSP were lawful or discriminatory.

First, in upholding the lawfulness of the CSP, the Board found that an employer has a “basic property right” to “regulate and restrict employee use of company property,” and that just as previous cases had held that an employer could regulate other forms of company property used for communications, such as telephones, copy machines, and bulletin boards, so too can an employer regulate its electronic communications systems.

When it came to the disciplinary warnings issued to the union president, the Board announced a new approach to allegations concerning discriminatory enforcement of e-mail and solicitation policies. Previously, for example, the Board had held it would be unlawful discrimination if an employer refused to allow an employee to use an employee bulletin board to post union organizing materials, while allowing employees to post personal items such as personal solicitations. The Board now applied a new standard for determining whether the employer was enforcing its solicitation policies in a discriminatory manner.

The Board would henceforth distinguish between personal non-work-related communications on the one hand, and “group” or “organizational” communications on the other hand. An employer would be violating the law only if “activities or communications of a similar character” are treated differently. Under this standard, “an employer would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by anti-union employees but not by pro-union employees.” Thus, the Board held an employer may lawfully 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 along Section 7 lines.”

Turning to the three e-mail communications for which the union president had been disciplined, the Board held that the first one (“Setting It Straight”) was not a solicitation and was merely informational. The second and third e-mail messages (wear green and join the parade) were deemed to be solicitations, in violation of the CSP. In issuing a warning for the first e-mail message, the Company had committed an unfair labor practice, because it had allowed employees to use Company e-mail for various other informational and personal purposes. The Board found it discriminatory to allow employees to use e-mail for personal informational purposes but not for union informational purposes. But, in issuing its disciplinary warning for the second and third e-mail messages, the Company acted lawfully, because it had not allowed employees to use e-mail to solicit for outside organizations or causes, and therefore did not discriminate by prohibiting union solicitation while allowing other outside solicitations.

Of course, it remains to be seen whether this NLRB Decision will survive judicial review or whether it will be reversed by new NLRB Members appointed by the new President in 2009. An appeal of the Board’s Decision has been filed in the D.C. Circuit Court of Appeals, with oral argument scheduled for this month.