Use of Email for Union Organizing, Quirky Question # 31

Quirky Question # 31:

Our company provides desktop computer terminals with email to virtually all of our employees.  We have adopted a policy covering the use of all of our Company-provided communications systems, including telephones, computers and email, fax machines and photocopy machines.  Our policy provides, “Communication 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 the course of performing a routine download and purge of a computer assigned to a recently departed employee, we became aware of an extensive series of email communications between the departed employee and two current employees concerning efforts to organize to secure union representation.  The emails include not only correspondence among these three employees but also messages sent by one or more of them to a large number of employees.  We would like to discipline the two remaining employees for violating our Communications Policy.  Is there any reason we should not do so?

Dorsey’s Analysis:

It is likely that you will be able to discipline the two employees for violating your Communications Policy without violating the National Labor Relations Act (NLRA), so long as you have consistently enforced the Policy (and continue to do so) in a non-discriminatory manner. The NLRB recently decided a long-awaited and highly anticipated case that provides important guidance (and significantly greater flexibility) to employers regarding the establishment, implementation, and enforcement of e-mail use policies. To better understand that decision and place it in proper context, a brief discussion of some basic rules about union-related communications in the workplace will be helpful.

The NLRA provides employees of covered employers certain rights, including the Section 7 right “to self-organization to form, join or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ..” Section 8 of the NLRA provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed. . . .” It is also an unfair labor practice for an employer “by discrimination . . . to encourage or discourage membership in any labor organization . . ..”

Over the years, the National Labor Relations Board, the federal agency charged with administering the NLRA, has developed an intricate set of rules about union-related communications in the workplace, attempting to balance the statutory rights of employees under the NLRA with employers’ rights to maintain control of their premises and to operate their businesses. An employer generally may not bar union-related communications among employees on employer property, such as a break room or lunchroom, during employees’ non-working time, and it generally may prohibit union-related conversations during working time only if it also prohibits other non-business conversations during working time. Next, the rule had been that an employer generally may prohibit union-related communications by employees using company property, such as bulletin boards, telephones, and copying machines, if it does not discriminate by permitting other non-business use of company property. Additionally, an employer generally may ban non-employee union organizers from its premises, but may not bar access by union agents if it allows other outside solicitors on its premises (except for limited charitable solicitations).

Until late last year, the NLRB had not addressed the rules for regulating electronic workplace conduct in compliance with the NLRA. On December 16, 2007, the NLRB issued its decision in the case of The Guard Publishing Company, 351 NLRB No. 27. In that 3-2 decision, decided along party lines, the NLRB addressed for the first time the question of how employees’ use of their employers’ e-mail systems relates to employee rights under the NLRA. The NLRB reviewed the employer’s communication policy, which prohibited the use of e-mail for “non-job-related solicitations” to determine whether the policy violated employees’ Section 7 rights and was an unfair labor practice.

The relevant portion of the policy at issue in Guard Publishing stated: “Company communications systems and the equipment used to operate the communications systems 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.”

The evidence before the NLRB showed that employees had – with the employer’s knowledge – used company e-mail for personal announcements, offers of personal items for sale, and other non-business purposes, without any disciplinary actions being taken against the employees who had used e-mail for those purposes. There was no evidence before the NLRB, however, that employees had ever used company e-mail for solicitations on behalf of any outside organization or cause of any kind (other than the United Way, for which the employer conducted a periodic annual compaign).

The employer, a newspaper publisher, twice disciplined a union employee for violating the communication policy after she sent e-mails regarding, among other things, a union rally and upcoming collective bargaining negotiations. The employee and her union challenged the disciplinary actions, and the e-mail policy itself, as violating employees’ rights to engage in collective activity with respect to their working conditions, under Section 7 of the NLRA. They argued that, because e-mail has become the most common method for employees to communicate about work and non-work issues, employers do not have an unfettered right to ban personal e-mail just because the employer owns the e-mail system. They also argued that, because e-mail is similar to face-to-face solicitations that occur in a break room or lunchroom, such communications cannot be banned during non-work time. Conversely, the employer argued that the union had many ways to communicate with the employees it represented other than through the use of the employer’s e-mail system, and that Section 7 does not provide employees with a statutory right to use employer-provided e-mail systems for any purpose. The key issue before the NLRB, then, was whether e-mail should be treated like employee communications on non-working time (which generally cannot be prohibited) or whether it should be treated the same as other situations involving company property, such as bulletin boards, telephones, and copying machines (where employers generally may ban union-related use if they do not discriminate).

The NLRB rejected the argument that employee use of employer-provided e-mail systems are like face-to-face solicitations in a break room or lunchroom which cannot be restricted during non-work time. Instead, the NLRB found an employer’s e-mail system to be like other company property, such as bulletin boards, telephones, and copiers, to which employers have always been permitted to restrict employee access. The NLRB held that no special rule is needed for e-mail, and that an employer may restrict non-business use of its e-mail system in that same way it can restrict the use of its other property.

The NLRB next considered the employee’s and the union’s claim that, having permitted employees’ use of the e-mail system for personal purposes unrelated to work, the employer could not lawfully prevent employees from using e-mail for union-related purposes. Recognizing that prior NLRB precedent supported this challenge to the employer’s implementation of its e-mail policy, the NLRB departed from and modified its prior precedent in the discriminatory application area and held that an employer does not discriminate against union-related use of its property merely because it permits some personal use of that property by employees. The NLRB held that an employer is allowed to choose what categories of communications to allow and prohibit so long as the distinction is not drawn along Section 7 lines.

This revised discrimination standard is beneficial to employers. It means that an employer does not need to permit union solicitation or distribution even if it permits solicitation or distribution for personal purposes, so long as the distinction made by the employer is not simply to prohibit union activity. Significantly, this portion of the Guard Publishing decision applies to all types of company property, and not just e-mail systems. In applying its new test to the case before it, the NLRB held that the employer could legally prohibit its employees from using its e-mail system to solicit support for the union and did not violate the NLRA when it disciplined the employee for sending e-mails urging support for the union during contract negotiations because, although the employer permitted employee e-mails of a personal nature, there was no evidence that it permitted e-mails intended to solicit support for a group or organization (with the sole permitted exception of the United Way).

Under Guard Publishing, you should be able to discipline your employees for their violations of your Communications Policy, so long as you have (and will continue to) strictly and consistently enforce the Policy. In other words, the two employees at issue can be disciplined for their union solicitation efforts only if employees who have solicited (or will solicit) participation in other membership organizations were also (or also will be) disciplined. If your Policy is not enforced as to non-union-related e-mail, but is enforced to ban union-related e-mail of a similar type, your enforcement of the Policy will give rise to a discrimination charge that will have a high chance of success. It would not be surprising if your union tests your enforcement of the Policy by encouraging its members to send prohibited, non-work-related e-mails that do not pertain to union issues to see if you will enforce the Policy in those situations. Monitoring e-mail is a tough task, but proper, consistent monitoring and enforcement is essential to prevent and defend against discriminatory enforcement unfair labor charges.

A few words of caution, however, in closing. Guard Publishing was one of several significant 2007 NLRB decisions decided by 3-2 votes, along party lines. The ultimate fate of the Guard Publishing decision is far from certain, and a number of factors, alone or together, could make it relatively short-lived. The majority’s decision, which has already been appealed to the Court of Appeals for the District of Columbia, provoked a vigorous dissent and may be modified or reversed by the Court of Appeals. There is also talk that union interests may seek to have legislation introduced in Congress that would have the effect of overturning the decision. Moreover, close party line decisions like Guard Publishing are vulnerable to change because, by long-standing tradition, the composition of the NLRB splits in favor of the party occupying the White House. The result of this November’s presidential election may affect the NLRB’s ideological balance and might result in the modification or reversal of the holdings in Guard Publishing. It is also likely that further litigation testing the exact parameters of Guard Publishing will occur.

Dorsey & Whitney

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