Employers May Limit E-mail Use for Union Solicitation
By: RICHARD A. ROSS
January 2008
In a long-awaited decision, the National Labor Relations Board (NLRB or Board), held that employers have the right to implement and enforce a policy prohibiting employees from using the company’s e-mail system for “non-job-related solicitations.” In The Guard Publishing Company, 351 NLRB No. 70 (12/16/07), the Board held that employees do not have a statutory right to use the employer’s e-mail system to solicit on behalf of unions. The NLRB, in this 3-2 decision, stated that employers may:
. . . draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g. a car for sale) and solicitations for the commercial sale of a product (e.g. Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business related use.
The Board noted that in each of the above examples, the fact that a union solicitation would fall in the prohibited side of the line did not violate the National Labor Relations Act (Act).
In a very fine-line drawn opinion, the Board held that the employer’s discipline of an employee (also the union president) for using the e-mail system to clarify the facts of a prior communication by the employer was discriminatory and violated the Act. The Board held the e-mail did not “solicit” anyone or anything, and therefore did not contravene the employer’s policy. Because the substance of the e-mail was union-related, however, her discipline was held to be discriminatory and in violation of the Act.
However, two subsequent e-mails by the same employee urging her co-workers to take some action in support of the union were soliciting and therefore violated the employer’s policy. Since the employer had consistently prohibited all non-work-related solicitations, the mere fact that the subject matter of the e-mail was union business, the discipline of the employee did not violate the Act.
The NLRB also held that the company’s policy itself was not discriminatory. The policy, which prohibited the use of the e-mail system for non-work-related solicitations was consistent with past Board precedent that employees do not have a right under the Act to use an employer-owned equipment for union business.
Although this decision was in the context of a union organized company, the holding will be equally applicable to employers who are not presently unionized, both in the context of a possible union organizing campaign or with respect to employees who may be engaged in protected concerted activities as defined in the Act. You should consult your labor lawyer for advice on the implementation and promulgation of a lawful e-mail policy or how this decision may affect your current policy and its enforcement.
Takeaway
Employers have the right to implement and enforce a policy prohibiting employees from using the company’s e-mail system for “non-job-related solicitations.”