Client Bulletin #380

1.14.08

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In a long awaited and highly controversial 3-2 decision, the NLRB ruled that a policy which prohibits employees from using e-mail for “non-job-related” solicitations does not violate the Act.

In The Register-Guard, the employer’s written policy governed employees’ use of its communications systems, including e-mails. The Communication’s System Policy (CSP) stated, in part:

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.

Employees used the e-mail regularly for work-related matters and also used it to send and receive personal messages such as baby announcements, party invitations, offers of sports tickets, and even requests for services such as dog walking. However, there was no evidence employees used e-mail to solicit support for or participate in any outside cause or organization other than the United Way, for which the employer conducted a periodic charitable campaign.

An employee, who served as the union president, used the e-mail system to send three separate e-mails to fellow employees in the bargaining unit. On the first occasion the union president used the e-mail system from her work station to pass on additional information about a union rally because she believed the employer had previously provided incomplete information to employees. She received a written warning for violating the CSP. The two other e-mails, for which she received a second written warning, asked employees to wear green to support the union’s position in negotiations and asked employees to participate in the union’s entry in an upcoming parade. These two e-mails were sent from a computer in the union office located off the employer’s premises. At issue before the Board was both the employer’s maintenance of the CSP and its alleged discriminatory enforcement of the policy.

Maintenance of the Policy

The Board found the employer’s maintenance of the policy to be lawful. The majority reasoned that under Board precedent, employees have no statutory right to use an employer’s equipment for Section 7 communications. The Board found the long standing rule under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) – that a ban on verbal solicitation during non-working time was unlawful absent special circumstances – was inapplicable since that rule applied only to face-to-face solicitation, not employee use of employer equipment. According to the Board majority, the use of e-mail had not changed the “pattern of industrial life” at the employer’s facility to the extent that face-to-face communication among the employees, sanctioned in Republic Aviation, had been eliminated or reduced to an insignificant level. Moreover, there was no contention that the employees rarely or never saw each other in person or that they communicated with each other solely by electronic means.

Alleged Discriminatory Enforcement of the Policy

Since the two e-mails urging employees to wear green to support the union and urging them to participate in the parade solicited their action in support of the union, and there was no evidence the employer permitted employees to use e-mail to solicit other employees to support any group or organization, the Board ruled that the second written warning was not discriminatory enforcement and, therefore, did not violate Section 8(a)(1). However, since the first e-mail, clarifying the facts about the union rally, was not a solicitation and the employer had permitted other non-work-related e-mails, the employer’s enforcement of the CSP discriminated along Section 7 lines and violated Sections 8(a)(1) and (3) of the Act.

In reaching its decision on the discriminatory enforcement issue, the Board overruled two of its earlier cases and relied on a decision by the U.S. Court of Appeals for the Seventh Circuit. According to the Board, discrimination along Section 7 lines means “the unequal treatment of equals.” In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their protected status under Section 7. Under the Board’s new rule, it would be unlawful to allow employees to use e-mails to solicit for one union, but not another, or to permit solicitation by anti-union employees, but not pro-union employees. It would, however, be acceptable for an employer to draw a line between charitable and non-charitable solicitations and to allow solicitations for organizations such as United Way, but not a union. 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 along Section 7 lines.

The Dissent

The Board’s two “Democrat” members issued an emotional dissent claiming that the NLRB has become the “Rip Van Winkle of administrative agencies.” According to the dissent, “only a Board that has been asleep for the past twenty years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace. In 2007, one cannot reasonably contend as the majority does, that an e-mail system is piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” The dissenters applied the balancing of interests test of the Republic Aviation and concluded that the employer’s prohibition on “all non-job-related solicitations” was overly broad and violated Section 8(a)(1). The dissent also took issue with the majority’s use of the Seventh Circuit analysis concerning the employer’s inconsistent enforcement of its policy. According to the dissent, to justify drawing a line between permitted and prohibited e-mails an employer must show some legitimate business reason for drawing that particular line and that business justification must outweigh the interference with employee’s Section 7 rights. Here, the employer had not done so.

E-mail Policies After Register-Guard

Since the Register-Guard decision was issued, the terms of three Board members have expired. Two of those three former members were part of the 3-2 majority in that case. Due to the highly controversial nature of this decision and its impact on union supporter’s access to other employees via e-mail, it is only a matter of time before a newly constituted Board will reconsider these issues. In the meantime, employers can review, and possibly revise, their current policies concerning employer-provided electronic communications to take advantage of the Register-Guard decision.

A policy which establishes the parameters for employee use of e-mail and other electronic communications systems should contain the following elements: 1) the policy should “stand alone” – it should not be incorporated within a general no-solicitation and no-distribution policy or rule; 2) it should clearly state the types of electronic communications covered; 3) it should recognize employees will use electronic communications for non-business-related purposes; and 4) it should clearly define the types of solicitation prohibited. The following policy should lawfully protect the employer’s interest in its electronic communications systems under the Register-Guard decision:

USE OF ELECTRONIC COMMUNICATIONS SYSTEMS

The Company’s electronic communications systems include electronic mail (e-mail), internet access, as well as information and programs on the Company’s network computers and personal computers assigned to employees.

Company electronic communications systems are intended to be used only for business purposes. However, as a limited exception, employees will be permitted to send and receive short, personal electronic communications so long as these activities do not interfere with the work of any employee. Any abuse of this privilege may result in the suspension of such privilege.

Under no circumstances shall employees use Company electronic communications to promote or solicit money for or memberships in any outside organization, including, but not limited to, social, civic, business, union, trade, and community groups.

   
Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.

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