NLRB Rules Employers May Restrict Union-Related Workplace E-mail

In a ruling potentially affecting any employer that provides company e-mail access to its employees, the National Labor Relations Board (NLRB) has held that employers may legally restrict the use of company e-mail for communications regarding labor unions, just as they may restrict e-mail regarding other matters, provided the restriction is applied evenly.

In this case of first impression, the NLRB held that an employer did not violate the National Labor Relations Act (NLRA) when it prohibited employees from using the employer's e-mail system for “non-job related solicitations.” (The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70, Dec. 16, 2007). The NLRB also held that the employer did not discriminatorily enforce its e-mail policy, since it prohibited e-mails to solicit support or participation for any outside causes or organizations, including labor unions, even though the employer allowed use of the e-mail system for personal e-mails.

It is a long-standing principle of federal labor law that employees are free to discuss union-related matters at the workplace during non-work time. The NLRB has also recognized employer rights, however, by holding that an employer has a basic property right to regulate and restrict the use of company property for such discussions, including telephones and bulletin boards. In this recent pivotal decision, the board finally examined the long-simmering issue of the tension and interplay between employee communication rights and the employer's e-mail system.

Property interests play key role

The NLRB largely came down on the side of the employer, finding that an employer's e-mail communication system is no different than other company equipment, and as such, can be lawfully regulated by the employer. The NLRB reasoned that employers have valid property interests in their e-mail systems, such as preserving server space, protecting against computer viruses, dissemination of confidential information and avoiding company liability for employees' inappropriate e-mails. The NLRB reasoned that the employer crosses the line only when it specifically targets an employee's union rights as the basis for interfering with a communication.

In finding that employees have no statutory right to use the employer's e-mail system for union solicitation, the NLRB distinguished Republic Aviation, a case in which the employer was found to violate the NLRA when it regulated traditional face-to-face solicitation in the workplace. The NLRB characterized Republic Aviation as standing for the proposition that an employer has to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived” of their ability to engage in communication about union matters in the workplace on their own time—even when employees are on the employer's private property, they retain federal labor law rights to engage in concerted activity relating to unions.

In contrast to such in-person discussions, however, the NLRB said Republic Aviation does not require the employer to yield its property interests in order to provide the most convenient or most effective means for employees to conduct those communications, nor does it give employees a statutory right to use the employer's equipment for those communications.

Additionally, the NLRB noted that an employer may use its own equipment to send anti-union messages, while lawfully denying employees the opportunity to use that equipment for pro-union messages. That is to say, employees are not entitled to use a certain method of communication just because the employer is using it.

Disparate treatment of similar types of communications must be avoided

In assessing whether the employer discriminatorily applied its facially lawful communication policy, the NLRB departed from prior decisions in which it had held that an employer violates the NLRA by removing union literature from its property when it had allowed other personal postings, such as wedding announcements or notices selling personal items—even where there was no evidence that the employer had allowed postings from outside clubs or organizations.

Instead, the NLRB adopted the Seventh Circuit's analysis of prior NLRB cases: In order for discrimination to be unlawful, there must be disparate treatment of activities or communications of a similar character because of their union or other Section 7 protected status. This analysis gives weight to an employer's need to control the activities of its employees in the workplace through property and contractual rights.

The NLRB reasoned that discrimination is the unequal treatment of equals and found that the rule banning all organizational notices cannot constitute as disparate treatment of unions, since numerous non-union entities are equally impacted. For example, the NLRB articulated that it would clearly be unlawful for an employer to allow solicitation by anti-union employees but not pro-union employees. However, the NLRB noted that nothing in the NLRA prohibits an employer from drawing distinctions between communications on a non-union related basis. For example, an employer may draw a line between charitable solicitations and non-charitable solicitations and between personal invitations and invitations for an organization.

The fact that union solicitations would fall on the prohibited side of the line in the above examples does not establish that the rule discriminates unlawfully along union lines. In the Register Guard case, there was no evidence that the employer permitted employees to use e-mail to solicit other employees to support any group or organization, and therefore there was no violation of the NLRA.