[Editor's Note: The Court of Appeals for the District of Columbia reversed the Board's holding that the employer did not violate the NLRA by disciplining the union president on the grounds that the employer permitted other personal email solicitations.Guard Publishing Co. d/b/a The Register-Guard v. NLRB, No. 07-1528, U.S. Court of Appeals for the District of Columbia Circuit (July 7, 2009). ]
Just in time to stuff the Xmas stockings of good charities (like the Salvation Army, Red Cross and United Way) and employers, a divided NLRB in a 3-2 decision recently announced a new rule regarding the use of employer email systems to support union activities in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (12/16/07). The NLRB’s majority concluded that that a newspaper publisher employer did not violate Section 8(a)(1) of the National Labor Relations Act by maintaining a broad policy which prohibited employees from using its e-mail system for any “non-job-related solicitations.” Further, the Board’s majority rejected allegations of discriminatory enforcement of the policy when the employer permitted incidental personal use of the email system (and to periodically solicit funds for the United Way) as long as the employees were not permitted to use the email system to elicit support for groups and organizations, including union. Indeed, the Board explicitly endorsed, “[f]or example, a rule that permitted charitable solicitations but not noncharitable solicitations [even though it] would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.”
In particular, the employer’s written policy prohibited the use of e-mail for “non-job-related solicitations”: "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."
In practice, the employer allowed a number of nonwork-related employee e-mails (such as such as baby announcements, party invitations, jokes and the occasional offer of sports tickets or request for services such as dog walking), but there was no evidence that it regularly permitted e-mails urging support for groups or organizations, other than the United Way. The employer issued two written warnings to an employee (who was also the local union president) for sending three union-related e-mails to the workforce during non-working time. One email was sent from her workstation computer and two were sent from the union offices to the employees’ work email addresses. The unfair labor practice complaint alleged that the employer’s maintenance of the policy and its enforcement against the union president violated the NLRA.
Addressing the maintenance of the policy, the Board majority reasoned that employees have no statutory right to use an employer’s equipment for Section 7 purposes. “An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir. 1983). The Respondent’s communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.”
Moreover, the majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, applied only to face-to-face solicitations was inapplicable to the use of an employer’s e-mail system. Consequently, the Board majority found no basis to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” "As with oral solicitations, however, if an employer has no rule in place that limits nonwork-related e-mails to nonworking time, the employer must show an actual interference with production or discipline in order to discipline employees for e-mails sent on working time."
With respect to the alleged discriminatory application of the policy to the union president’s e-mails, the majority “clarified” that “discrimination under the Act means drawing a distinction along Section 7 lines.” “In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” The majority adopted the reasoning of the Seventh Circuit Court of Appeals, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” Therefore, the majority overruled the Board’s prior decisions to the extent they are inconsistent.
Applying the new standard, the majority found that the employer had permitted a variety of personal, nonwork-related e-mails, but had never permitted e-mails to solicit support for a group or organization. Because two of the union president’s e-mails were solicitations to support the union, the employer did not discriminate in violation of the NLRA by applying its e-mail policy to those e-mails. However, the majority found that a third e-mail by the union president was not a solicitation, but was simply a clarification of facts surrounding a recent union event. Accordingly, the enforcement of the policy with respect to that e-mail was unlawful (even though it was sent from her work station) because the employer had discriminated against the employee on the basis of her union activities.
As the Board explained the future application of its new rule, “an employer clearly 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 antiunion employees but not by prounion employees” because “[i]n either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw a line between charitable solicitations and noncharitable 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” in violation of the NLRA. For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.
The Board also unanimously affirmed the judge’s finding that the employer violated Section 8(a)(1) by maintaining an overly broad rule, in the absence of special circumstances, prohibiting employees from wearing or displaying union insignia while working with the public.
Insomniacs can read the full decision at http://www.nlrb.gov/about_us/news_room/template_html.aspx?file=http://www.nlrb.gov/shared_files/Press%20Releases/2007/R-2652.htm.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
