NLRB PERMITS EMPLOYER TO DISCIPLINE UNION PRESIDENT FOR USING COMPANY E-MAIL FOR UNION BUSINESS
In the recent decision of The Register-Guard, the National Labor Relations Board (“NLRB” or “the Board”) determined that an employer can maintain a policy restricting employees from using its electronic communication systems for “non-job-related solicitations.”
The Register-Guard newspaper disciplined an employee, who was also the union president, for violating its computer use policy after she sent three e-mails to her coworkers regarding union activity. The employer’s policy stated: “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.” The employee’s first e-mail was factual and provided information about a union rally that had taken place the day before. The other two e-mails called for employees to take action in support of the union by wearing green and participating in a local parade.
The employee and the union argued that the company’s policy violated Section 7 of the National Labor Relations Act (“the Act”) by hindering employees’ ability to communicate with one another. The Board disagreed. In a 3-2 ruling, the Board found that the company had a “basic property right to regulate and restrict employee use of company property,” and had a “legitimate business interest in maintaining the efficient operation of its e-mail system.” The dissent argued that the company’s property rights should be weighed against the employees’ right to communicate about collective concerns. The majority dismissed this argument, finding that the employer’s policy did not eliminate face-to-face communication among the employees.
Although the Board upheld the existence of the policy, it determined that the company enforced it in a discriminatory fashion by disciplining the employee for sending the first e-mail. The Board explained that the first e-mail, which contained merely factual information, was not a solicitation. Inasmuch as the company had permitted a variety of similar non-work related, non-solicitory e-mails, it improperly disciplined the union president. The Board confirmed, however, that the other two e-mails were solicitations and that the company was permitted to discipline the employee in accordance with its policy for those communications.
The Board explained that employers, with consistent enforcement, may lawfully draw distinctions between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for commercial sales (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 case, said the Board, the fact that union solicitation falls on the prohibited side of the line does not establish that the rule violates the Act.
Recognizing the above distinctions is quite a sea-change for the Board. Yet, employers are cautioned against completely redrafting their e-mail policies to carve out permissible and impermissible personal uses of their e-mail systems. First, employers must still be concerned about conserving server space, protecting against computer viruses, the dissemination of confidential information, and potential liability for employees’ inappropriate e-mails. Second, it remains to be seen if this very pro-employer decision will survive after the presidential election in November and the appointment of new Board members.
The one thing employers can safely take away from this case is that employees have no right under the Act to use an employer’s e-mail system for protected concerted activities, including union organizing efforts, provided the employer’s rules concerning e-mail use are consistently enforced.