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Legal Updates

Employers Can Restrict Union Use of Employer E-mail System

In a long-awaited decision, the National Labor Relations Board (“NLRB”) has ruled that employers may prohibit employees from using employer e-mail systems to send union-related messages even when the employer allows – or merely tolerates –  employees’ personal use of the employer’s e-mail system.

In a 3-2 decision, the NLRB majority ruled that such an e-mail policy, of a newspaper based in Eugene, Oregon, “The Register-Guard,” did not violate the National Labor Relations Act (“NLRA”).  The newspaper’s written policy limited employee e-mail use to business-related purposes and explicitly prohibited the use of e-mail for “non-job-related solicitations.”  In practice, however, the newspaper allowed a number of non-work-related employee e-mails, such as invitations for social gatherings, jokes, baby announcements, and ticket offers.  Significantly, though, there was no evidence that the newspaper permitted e-mails urging support for groups or organizations.

The case arose after the newspaper issued two written warnings to an employee who was also president of her union, after the employee/union president sent e-mails to fellow employees about union activities and urging support for the union.

The NLRB’s General Counsel argued that e-mail had become the principal means for employee communication at work, and therefore, employees should have greater rights to use their employer’s e-mail systems compared to other types of employer property.  However, the NLRB rejected this argument, finding instead that e-mail had not so fundamentally “changed the pattern of industrial life” at the newspaper to justify such a limitation on the newspaper’s property rights.  The NLRB then ruled that employees do not have a statutory right under the NLRA to use an employer’s equipment or media to conduct NLRA-protected communications.

In the decision, the NLRB also modified its standard for determining whether an employer applied an e-mail usage policy in a discriminatory manner to adversely affect protected NLRA-related communications to employees.  In the past, if an employer permitted employee use of the e-mail system for any personal purpose, the employer generally lost all rights to prohibit any other type of personal use based on the NLRB’s broad view of disparate treatment.  In this decision however, the NLRB clarified, and narrowed, its disparate treatment analysis to “communications of a similar character.”   In so ruling, the NLRB rejected its past rulings in the bulletin board context that held employers violated the NLRA when they allowed personal, non-work related postings like wedding announcements and for-sale notices, but prohibited the posting of solicitations generally.

This decision indicates that going-forward, the NLRB will distinguish between individual and personal non-work-related postings, such as for-sale notices and wedding announcements, and “group” or “organizational” postings such as union materials. Employers may now, without violating the NLRA, distinguish between charitable solicitations and non-charitable solicitations; solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products);  and invitations for an organization and invitations of a personal nature.   An employer will still violate the NLRA if it permits employees to solicit for one union but not another, or if it permits solicitation by anti-union employees but not solicitation by pro-union employees.

Applying this standard, the NLRB found that the newspaper did not violate the NLRA when it disciplined the employee/union president for sending union-related e-mails even though it allowed other employees to send personal e-mails for social gatherings and other non-work-related announcements.

In short, this decision means that absent a statutory basis in the NLRA for an asserted employee right to use employer’s e-mail systems for union organizational purposes, and in the absence of disparate treatment, employers may prohibit unions from using company e-mail for union organizing.

Based on this decision, employers should review and, if appropriate, consider revising relevant policies contained in handbooks and policy manuals regarding the use of employer communication systems.  This decision provides NLRB-precedent for employers to prohibit personal use of employer e-mail systems.  Moreover, if an employer determines that enforcement of such a policy is not feasible, the employer may implement a policy that allows certain types of personal use of the employer’s e-mail system, but prohibits all types of solicitation.  Employers should consult with counsel when considering whether to implement or revise an existing communication systems policy.

As always, if you have any questions regarding this decision or communication systems policies in general, please do not hesitate to contact the Firm.