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NLRB Will Hear Argument on Whether Employees’ Use of Employer’s E-mail Is Protected Concerted Activity

Volume 6, Issue 2
February 16, 2007

The National Labor Relations Board ("NLRB") will hear oral argument on March 27, 2007, on the issue of whether employees have the right to use their employer's e-mail system to communicate with other employees about union or other protected concerted activity under the National Labor Relations Act ("NLRA").

The hearing stems from a case where the Register Guard, a newspaper company, disciplined an employee, Suzi Prozanski, who served as the union president, for using the employer's e-mail system to notify coworkers of union events and for sending such e-mails from the union's computer system to her coworkers' work e-mail addresses. See Guard Publishing Co., d/b/a The Register-Guard, NLRB No. 36-CA-8743-1, et al. (2002). The company's computer use policy prohibited the use of its e-mail system "to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."

The NLRB Administrative Law Judge ("ALJ") who heard the case ruled that the company's no-solicitation policy was not overbroad on its face. The ALJ relied upon the fact that the "Board has consistently found that employers may non-discriminatorily limit the use of their communications equipment without infringing on employees' rights to solicit for Section 7 purposes."

However, the ALJ found that the company nonetheless violated the NLRA because it failed to apply the communications policy in a consistent, non-discriminatory fashion. "The record is replete with evidence of personal use of Respondent's e-mail system by its employees and managers both before and after [the company] disciplined Prozanski." Indeed, testimony revealed that employees and even managers regularly sent e-mails regarding parties, jokes, community events, sporting events, births, lunch gatherings and poker games. Additionally, contrary to its own policy, the company permitted third party organizations, such as Weight Watchers and United Way, access to the e-mail system.

The NLRB invited interested parties to serve amicus briefs in the case on several topics, many of which highlight the complexity of this important issue:

  1. Do employees have a right to use their employer's e-mail system (or other computer-based communications systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
  2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees' use of their employer's e-mail system? If so, how should those rules be applied?
  3. If employees have a right to use their employer's e-mail system, may an employer nevertheless prohibit e-mail access to its employees by non-employees? If employees have a right to use their employer's e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
  4. In answering the foregoing questions, of what relevance is the location of the employee's workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
  5. Is employee's use of their employer's e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer's e-mail system, to what extent is that right waivable by their bargaining representative?

The Board's decision will have a major impact on all employers using computerized systems. If the Board holds that employees' use of their employers' electronic communications systems is protected concerted activity, many employers will need to revise their communications policies and revisit their union avoidance preventive measures.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.