Email communication has become common at the workplace during the last 10 years or so. It is a fast, cheap, discrete, and efficient way of distributing information about work-related matters. But these same characteristics make email an ideal method for employees to communicate among themselves regarding non-work matters, including union organizing activities.

Many employers have policies limiting the use of company email. For example, effective policies prohibit communications that would violate equal employment opportunity laws, or emails that would place the employee in a conflict of interest. Employers have an interest in protecting their servers from viruses or inappropriate email attachments, and in preserving storage space.

Employers also may seek to limit email communication among employees regarding union organizing. Most employers are non-union and probably want to stay that way. To remain union-free, employers must be aware and proactive regarding pro-union solicitation. However, employers that are overly zealous in their efforts to deter employees from joining labor organizations may run afoul of the National Labor Relations Act (“NLRA”). The National Labor Relations Board (“NLRB” or “Board”) is the federal agency that enforces the NLRA. In Guard Publishing Co., decided Dec. 21, 2007, the NLRB explained the circumstances under which employers may limit pro-union communications under the NLRA.

Section 7 Rights

The NLRA protects employees and unions efforts to gain support for union representation. Section 7 generally protects employees’ communications regarding unions, as well as employees’ rights to communicate for their “mutual aid and protection” about wages, hours, and other terms and conditions of employment. On the other hand, employers have the right to demand productivity during work time and to regulate certain activities at the workplace. The balance between employees’ and employers’ rights regarding non-work-related communications has been the subject of significant litigation since Congress passed the NLRA in the 1930’s.

There are a number of employer policies that regulate communications at work. These may include limitations on the use of company bulletin boards, prohibitions against solicitation and distribution at work, and policies regulating non-work activities and employees’ and third parties’ use of employers’ equipment and property.

Employees and unions seeking support among a group of employees have battled with employers over the use of employers’ walls and meeting rooms, the right to pass out flyers, obtain access to workers at the job site, and the like.

Section 7 protects the communications themselves. However, the law does not give employees the right to use work time or the employer’s equipment to communicate. So, for example, employers may require employees to limit union activities to non-work time. But they cannot prohibit employees from discussing pro-union sentiments on the employer’s property during non-work time. At the same time, employees do not have the absolute right to use the employer’s bulletin boards to post pro-union information. Employees cannot hold a pro-union rally in the employer’s meeting rooms. And, employers may ban employees from soliciting each other for non-work purposes during work time.

There is an important caveat, however. Employers are not permitted to “discriminate” against communications protected under section 7. This area of the law significantly changed when the NLRB issued its opinion in Guard Publishing on December 21, 2007. Before Guard Publishing, if employees could use bulletin boards for certain non-work related activities and solicitations, then the employer could not ban solicitations regarding union activities. If employers permit employees to meet regarding personal business in meeting rooms, the employer cannot take action if the subject of the meeting turns to unionization. Employers still may not “discriminate,” but the NLRB modified the definition of discrimination in the Guard Publishing decision.

The Guard Publishing Co. Decision

Guard Publishing operates a newspaper called the Register-Guard. Some of the employees were represented by a local union affiliated with the Communication Workers of America. The company had in place an email policy providing: “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 case arose after the newspaper’s management disciplined a union member for sending three emails to other employees regarding union activities. The first email was intended to respond to a company communication, and did not call employees to action or otherwise solicit the employees. The second email asked employees to wear green to support the union’s bargaining proposals. The third email solicited employees’ participation in the union’s involvement in an upcoming parade.

The union filed an unfair labor practice charge, alleging that Guard Publishing’s policy violated employees’ section 7 rights to communicate freely, and that the disciplinary action was discriminatory because the company permitted employees to communicate about other personal matters unrelated to the union.

An administrative law judge agreed with the employer that the policy banning solicitation itself was legal. However, the judge decided that Guard Publishing’s management discriminated against the employee. The judge noted that the employer permitted emails on many subjects unrelated to conducting company business. Therefore, relying on a number of prior court and board decisions, the ALJ held that the company had no right to ban personal emails concerning union issues while permitting other non-work-related emails.

No General Right to Use Workplace Email for Pro-Union Activities

On appeal, the NLRB first considered whether employers must affirmatively permit pro-union communications on their email systems. Employee advocates argued that limits on email communications, even those requiring email to be used primarily for business reasons, “chilled” employees’ section 7 rights. They also tried to argue that employers’ property interests in their email systems should yield to employees’ section 7 rights. The Board was unmoved, holding that employers own their email systems like they own their walls and bulletin boards. Therefore, the NLRB ruled, there is no inherent right protecting employees’ pro-union email communications. Employers therefore may ban email communications for non-business related solicitations.

The New Definition of “Discrimination” under the NLRA

The Board then turned to claims that the company discriminated against the employee for sending pro-union emails. The Board developed a new standard for evaluating whether employers’ policies are unfair labor practices because they “discriminate” against the exercise of section 7 rights.

As stated above, under prior Board law, if an employer permitted employees to post personal, non-work related information on bulletin boards, it could not prohibit union-related posts. The Administrative Law Judge relied on this line of cases when it found Guard Publishing discriminated against the union activist employee. Thus, there was evidence Guard Publishing had permitted employees to use emails for a variety of personal communications.

The Board on appeal noted that there was no evidence Guard Publishing had ever allowed employees to use the email system to solicit on behalf of an outside organization (with the exception of a single charitable organization). Therefore, the Board held that company did not “discriminate” against the use of email for solicitations; the company banned them all in its policy and there was no evidence of selective enforcement. On the other hand, the Board found that the employee’s use of email to “set the record straight” regarding a dispute between the union and management was not a solicitation and therefore should have been allowed on the same basis as other non-work-related emails.

The NLRB then re-defined the concept of “discriminatory” enforcement of policies. Under the new rule, to find a violation, the Board must determine that the employer distinguished between communications “along section 7 lines.” That is, if the employer prohibits solicitations on behalf of third party organizations (unions, political groups, insurance salespersons, etc.), then the employer may prohibit union solicitation as well, even if the employer tolerates personal emails that do not contain solicitations.

Moreover, the Board expressly recognized that an employer may make other distinctions, so long as the lines are not drawn to disfavor unions over other similar groups. For example, the employer may allow solicitations by charitable organizations and ban solicitations by everyone else. In that way, the employer would not “discriminate” against solicitations protected by section 7, but rather would “discriminate” (lawfully) against all solicitations except for charitable ones.

Conclusion

The NLRB’s decision in Guard Publishing applies to union and non-union employers alike. Employers may wish to review their non-solicitation and distribution, bulletin board, and email policies to ensure they conform with the new standard articulated in the Guard Publishing opinion.

It also bears noting that Guard Publishing was decided by a bare majority of three NLRB members, with two members dissenting. Once the Board membership changes (as it generally does with a new administration), the applicable legal standards may once again change.

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