Legal Updates

E-Mail Policies May Open The Door To Labor Unions

For employers interested in preventing employees from using the company e-mail system to solicit support for labor unions, maintaining a facially neutral e-mail policy is not enough.

Regardless of how carefully the policy is drafted, if it is enforced in a discriminatory manner—that is, if employees are permitted to use e-mail to solicit support for or participation in other types of organizations and activities—then the policy may be declared unlawful as applied to union solicitations.

In Guard Publishing Co. v. NLRB, a recent decision by a federal appeals court, the employer learned this lesson the hard way.  The employer had a policy prohibiting all nonwork-related e-mails, but the employer did not enforce this policy strictly.  Rather, the employer permitted employees to send e-mails concerning various nonwork-related pursuits, including invitations to house parties, poker games, and other social events.  Nonetheless, when an employee sent e-mails asking coworkers to wear green as a show of support for the union in contract negotiations and seeking volunteers to help with the union’s entry in a local parade, the employer disciplined the employee for violating this policy.

The union’s legal challenge to this action resulted in a clear wake-up call for the employer:  the court held that the employer’s uneven enforcement of its e-mail policy rendered the policy unenforceable as to union solicitations.

Factual Background

The employer in the case, Guard Publishing Company (“Guard”), publishes a daily newspaper in the Eugene, Oregon area.  A significant number of its employees are represented by a local unit of the Communications Workers of America.

In May and August of 2000, Guard sent formal disciplinary warnings to a copy editor, Suzi Prozanski, who also served as the union’s president, as a result of three e-mails that Prozanski sent to other Guard employees through the company’s e-mail system.  The first of these e-mails purported to clarify the facts surrounding a union rally.  Prozanski had sent it in response to an e-mail from Guard that warned employees that the rally might be attended by anarchists.  In the other two e-mails, Prozanski (a) urged employees to wear green to show support for the union in contract negotiations, and (b) sought volunteers to help with the union’s entry in a local parade.

As its basis for formally warning Prozanski about these e-mails, Guard cited its written Communications Systems Policy (“CSP”), which prohibited use of the company’s electronic systems and equipment “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”  In response to the disciplinary warnings, Prozanski’s union filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”), alleging that Guard had unlawfully discriminated on the basis of union activity by disciplining Prozanski for these e-mails while tolerating employee e-mails of a similar nature that did not relate to union activities.

The NLRB’s Holding

In ruling on the charge, the NLRB determined that the first of the e-mails by Prozanski (the one concerning the union rally) did not constitute a “solicitation” but was purely informational in nature.  Thus, the NLRB ruled that the e-mail did not fall within the prohibitions of the company’s CSP.  Moreover, the NLRB found that Guard had permitted a wide variety of nonwork-related e-mails by employees other than solicitations, such as jokes and baby announcements.  As a result, the NLRB concluded that Guard had acted unlawfully by disciplining Prozanski based on the fact that her e-mail related to a union matter.

As to the remaining two e-mails (those soliciting support for the union relative to contract negotiations and a local parade), the NLRB rejected the union’s allegation that Guard had unlawfully disciplined Prozanski based on the union-related content of these messages.  On this point, the NLRB stated that an employer is free to draw the line between permitted and prohibited uses of its electronic communications systems on any basis that it deems appropriate, so long as the employer does not discriminate based on whether a communication relates to union activity.

Applying this principle, the NLRB found that while Guard had tolerated individual e-mail solicitations by employees (e.g., e-mails offering sports tickets and personal services such as dog-walking), there was no indication that the company had permitted employees to use its e-mail system to solicit support for any outside groups or organizations.  The NLRB concluded that it was this distinction, rather than the union-related content of the e-mails, that had motivated the disciplinary warning, and that Guard therefore had not violated the law by issuing this warning.

The Appeals Court’s Decision

Both parties appealed the NLRB’s decision to the U.S. Court of Appeals for the D.C. Circuit.  In its ruling, the court did not question the NLRB’s holding that an employer may adopt whatever distinctions it deems appropriate between permissible and prohibited uses of its electronic systems, provided that those distinctions are not based upon union activity.  In addition, the court upheld the NLRB’s finding that Prozanski’s e-mail concerning the union rally did not fall within the restrictions of the CSP and that Prozanski’s discipline regarding this e-mail was therefore unlawful.

However, contrary to the NLRB’s finding, the court concluded that Guard had unlawfully discriminated on the basis of union activity in disciplining Prozanski for sending the two e-mails relating to contract negotiations and the union’s entry in a parade.  As to these emails, the court emphasized that the distinction cited by Guard and relied on by the NLRB – that of individual solicitations versus solicitations on behalf of outside groups or organizations – did not appear anywhere in the company’s CSP.  Rather, the CSP expressly prohibited all nonwork-related e-mail solicitations, whether individual or organizational in nature.

The court also made the following three points.  First, the disciplinary notice that Guard had issued to Prozanski did not cite any distinction between individual and group solicitations as the reason Prozanski’s e-mails were deemed to violate Guard’s policies.  Second, the company could not cite any other instance in which an employee had been disciplined for sending an e-mail in support of an outside group or organization.  And third, employees had sent e-mails inviting coworkers to participate in parties, poker games, and other outside group events without being subject to discipline.

Accordingly, the court concluded that the distinction between individual and group solicitations that Guard relied on in the litigation was merely a post hoc invention, and that Prozanski had been disciplined unlawfully due to the union-related content of the e-mails.

Guidance for Employers

The Guard Publishing decision underscores that however an employer chooses to draw the line between permitted and prohibited uses of its electronic systems, it is not permitted to apply such policies in a manner that treats union-related communications differently from other nonwork-related communications of a similar nature.  Therefore, employers should formulate e-mail policies that fit their culture and serve their goals—and that they are willing and able to strictly enforce.

For instance, an employer could validly exclude union-related communications by adopting a blanket rule requiring that its electronic systems be used solely for work-related messages.  Such a policy, however, may be challenging to enforce, given that the incidental use of personal e-mails is inevitable in most workplaces.  In this regard, supervisors may be uncomfortable imposing discipline for such incidental usage, and employees may perceive such discipline as unduly harsh.

Alternatively, an employer might bar only those nonwork-related e-mails that solicit support for or participation in nonwork-related activities and organizations.  If strictly enforced, this approach should preclude union-related e-mails, while permitting the incidental use of personal e-mails for other purposes (e.g., “Honey, what would you like me to pick up for dinner tonight?”).  Such a policy should be easier to enforce than the blanket rule referenced above.  Additionally, although such a policy would prevent personal e-mails that solicit support for or participation in popular activities like school events and fundraising walks, it nonetheless should be more acceptable to employees.

Regardless of where employers decide to draw the line, they are advised to take the following measures:

• Have legal counsel review any existing or proposed e-mail policy and enforcement plan to ensure compliance with applicable labor and privacy laws;
• Include in the company’s employee handbook any new policy language that may be required, and notify employees of this change in a manner that does not state or imply a motive to prevent them from exercising their legal rights regarding labor unions;
• Conduct training for supervisors and managers on the e-mail policy and the related labor-law implications so that they may enforce the policy with a full understanding of its scope—and of the consequences of a failure to enforce it strictly; and
• Proceed to implement and strictly enforce the new or modified policy, as the case may be, having legal counsel review any personal e-mails that are questionable under the policy to determine an appropriate course of action.

Please feel free to contact us if you have any questions about the Guard Publishing decision, or if you need assistance in reviewing existing or proposed e-mail policies and corresponding enforcement practices.