January 2, 2008Client Alert

NLRB Issues Long-Awaited Decision on Employee E-mail Use

On December 21, 2007, a divided National Labor Relations Board (“Board”) issued its decision in Guard Publishing d/b/a Register-Guard, 351 NLRB No. 70 (2007) - a case involving the right of an employer to regulate employee use of its e-mail system.

The Key Holdings

The Board held that employees do not have a statutory right to use their employer's computer-based communication systems to communicate with other employees about union activities and other matters generally protected by Section 7 of the National Labor Relations Act (“Act”). Simply stated, an employer can legally maintain a policy banning the non-work related use of its e-mail system unless it acts in a manner that discriminates against Section 7 activity.

More significantly, the Board overruled prior decisions in adopting a new standard for determining whether such a policy has been discriminatorily enforced. The Board will not make such a finding simply because the employer has allowed some non work-related e-mails. Consistent with the principle that “discrimination means the unequal treatment of equals,” there must be proof that the employer has engaged in “disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.”

About The Case

The material facts were not disputed. Suzi Prozanski, a Register-Guard employee and union president, was disciplined on two occasions for violating a Communications Systems Policy ("CSP"). The CSP provided that “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.”

Prozanski sent one e-mail clarifying certain facts about a prior union rally. The e-mail was composed and sent to her co-workers from her work station during her breaktime. Prozanski received a written warning for using the e-mail system to conduct “Guild business.” Prozanski sent two more e-mails from the local union's office to Register-Guard e-mail addresses. One asked unit employees to wear green to support the union's position in negotiations; the other asked them to participate in the union's entry in a town parade. Prozanski received another written warning ordering her to "stop using the system for dissemination of union information."

An unfair labor practice charge was filed alleging that the CSP was facially unlawful and/or discriminatorily enforced. With regard to the discrimination claim, evidence showed that the Register-Guard allowed employees to use the e-mail system to communicate non-work-related information such as jokes, baby announcements, party invitations, the offer of sports tickets, and requests for services such as dog walking.

The Board held that the Register-Guard had a right to maintain and enforce an e-mail policy banning “non job-related solicitations” unless it acted in a manner that discriminated against Section 7 activity. Applying its new test for “discrimination”, the Board proceeded to examine the types of e-mails the Register-Guard allowed and reached mixed conclusions about the discipline Prozanski received.

The Board held that the company did not discriminate “along Section 7 lines” when it disciplined Prozanski for sending the two e-mails asking employees to support the union by wearing green or participating in the town parade. The Board noted that “both messages called for employees to take action in support of the union” and there was no evidence the company allowed employees (or anyone else) to use e-mail to solicit support for or participation in any outside cause or organization other than the company’s periodic United Way charitable campaign. The CSP prohibited only "non-job-related solicitations," not all non-job-related communications.

By contrast, the Board held that the company did engage in discrimination when it disciplined Prozanski for sending the e-mail clarifying facts about an earlier union rally. According to the Board, that e-mail did not involve a “solicitation” (i.e., “it did not call for action; it simply clarified the facts surrounding the Union's rally the day before”). Since the company had allowed a variety of non work-related e-mails other than solicitations, it could not lawfully prohibit Prozanski from engaging in similar conduct. As a remedy, the Board ordered the company to "cease and desist from...discriminatorily prohibiting employees from using the Respondent's electronic communications systems to send union-related messages" and rescind the unlawful warning issued to Prozanski.

Practical Implications

The Board’s decision in Register-Guard has a variety of practical implications for employers.

  • The decision is a reminder that e-mail has become a primary mode of employee communication and interaction in many workplaces and may be limited and carefully monitored for a variety of legitimate business reasons – e.g., to prevent liability for inappropriate e-mails, to protect against system overloads and viruses, to protect confidential information, and to maintain productivity.
  • The decision also is a reminder that “e-mail evidence” is discoverable in unfair labor practice and other employment litigation. The presence or absence of consistent and well-documented enforcement of e-mail policy violations will be an important factor in future litigation.
  • While employers now have increased flexibility to allow employees to engage in a range of non work-related e-mail communications (while prohibiting e-mail communications that might otherwise be protected under Section 7 of the Act), decisions in future cases will still rise and fall on whether “discrimination” has occurred – i.e., what type of e-mail use the employer, in practice, has and has not allowed.
  • Since the Board will continue to look at whether an employer had an anti-union motive for its actions, e-mail policies should be adopted long before an employer is confronted with union activity. Unionized employers should consider whether contractual limitations and/or statutory bargaining obligations impact the adoption of an e-mail policy.
  • Since most employees send and receive some non business-related e-mail at work, e-mail policies should be tailored to fit your particular workplace culture the type of e-mail use you are prepared to and realistically can prohibit. While “business use only” policies may be good in concept, they are often difficult to enforce and generally honored in the breach.
  • Your e-mail policy should be reviewed by counsel to ensure that it does not discriminate along Section 7 lines. In Register-Guard, the Board gave the following examples:
  • “[A]n employer may draw a line between charitable solicitations and non-charitable 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. 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 holdings in Register-Guard apply with equal force to policies and practices regulating employee use of employer-owned bulletin boards, telephones, televisions, fax machines, copiers, and other media.
  • It remains to be seen whether the Board will require employers to allow some employee and/or union e-mail use in the rare case in which there are no reasonable means of communication among employees at work other than e-mail or as a remedy for proven discriminatory enforcement of an e-mail policy.
  • It remains to be seen whether the Board will extend its new “discrimination” standard to “property access” cases. If that standard is extended (a “big” if), employers may have greater freedom to allow charitable organizations to engage in on-site solicitations while denying property access to unions and other non-charitable organizations.
  • If the political composition of the Board changes as a result of the 2008 Presidential election, the decision in Register-Guard may be short-lived victory for employers. The dissenting Board members in Register-Guard advocated for a rule stating that where an employer has given employees access to e-mail for regular use in their work, a rule banning all non work-related "solicitations" is presumptively unlawful absent special circumstances.

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