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NLRB Requires Employer To Allow Use Of Company Email For Union Purposes

Volume 10, Issue 13
October 26, 2011

Drawing from prior case law on the discriminatory enforcement of company non-solicitation policies, the National Labor Relations Board ("NLRB") has allowed the use of company email for union business. In the recent Guard Publishing Company case, the NLRB found that the employer, an Oregon newspaper, discriminatorily applied its policy barring employee use of company email systems for non-work purposes when it disciplined an employee who was also the union president.

The employer policy at issue prohibited 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 employee-union president had previously used the company email system to send an email to 50 employees correcting a misstatement circulated by another employee a few days earlier and received a written warning for violating company policy. Subsequently, the employee-union president sent two other emails from the union's off-site office to a number of employees at their company addresses, thinking that there would be no problem if she sent the emails from a non-company computer. However, the employer issued her a second written warning for using its communication systems for non-job related solicitations causing the union to file an unfair labor practice charge with the NLRB.

Initially, the NLRB ruled in favor of the employer, finding that the employer had not treated solicitations to support union activity differently from solicitations to oppose union activity based, in part, on case law from the U.S. Circuit Court of Appeals for the Seventh Circuit. See KZA's March 29, 2008 Employer Report. The union appealed the NLRB's ruling to the U.S. Circuit Court of Appeals for the District of Columbia, which is typically regarded as a more employer-friendly court. The D.C. Circuit Court disagreed with the NLRB's ruling and found that there was sufficient evidence establishing that the employer permitted other employees to email non-union-related solicitations of a personal nature. The court rejected the employer's argument that it properly drew distinctions between individual and organizational solicitations, finding that it was "a post hoc invention" raised only after the NLRB's General Counsel filed a complaint. Thus, because the employer had permitted employees to email non-related solicitations, such as invitations to parties, offers of sports tickets, personal announcements and requests for personal services, and offered no proof in terms of policy language or practice that it enforced any distinction between individual and organizational solicitations, it was deemed to have violated the National Labor Relations Act when it disciplined its employee-union president for using the company email system. On remand, the NLRB accepted the court's ruling, changed its position and held that the employer engaged in unlawful anti-union discrimination.

Rather than use a narrow interpretation of the discrimination issue that focuses on the treatment of similar types of email messages at it did in its original decisions, i.e., whether the employer allowed its email system to be used for anti-union solicitations, but not for pro-union solicitations/union business, the D.C. Circuit Court and the NLRB applied a much more expansive interpretation that considers whether or not the employer allows/tolerates the use of its email system for any other type of non-work related "solicitation," while not allowing union solicitations. This interpretation is consistent with the Obama NLRB's pattern of broadening its legal interpretations in ways that favor unions and union organizing. However, the NLRB's decision in Guard Publishing Company is also consistent with prior interpretations spanning many years concerning the lawfulness of employers' policies pertaining to verbal solicitations, as well as those concerning postings on employer bulletin boards - where the issue is whether the employer allows employees to sell items or solicit others, but does not allow union solicitations.

How can an employer protect itself?

  • Consider this issue now - before you have a problem. Consider the uses of company email, including the nature of personal use of the system.
  • Develop and implement a lawful no-solicitation policy that applies specifically to the use of email and computer systems (as well as elsewhere in the workplace).
  • If you already have a no-solicitation policy, it must be enforced uniformly. Thus, if a supervisor learns of a non-work-related solicitation on email elsewhere - such as for a baby shower or offers of sports tickets - disciplinary action should be taken. A record of discipline for solicitations that do not involve union issues will be essential to defend against actions that bar or discipline employees for use of the system for union purposes.

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.