NLRB’s General Counsel Issues Register-Guard Memo, Raising Further Questions on E-Mail Policies

E-mail has become the modern-day medium for union solicitation. Employers who restrict employees’ use of company e-mail must do so in a way that does not violate Section 7 of the National Labor Relations Act (NLRA).  The National Labor Relations Board (NLRB) was asked to determine the limits of these restrictions in a case decided in December 2007, The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007) (Register-Guard). But the decision may have raised more questions than it answered.

The NLRB’s Decision

In Register-Guard, the Board was asked to rule on the circumstances under which an employer may discipline an employee for personal use of the business’ e-mail account. Restrictions, the union argued, constituted an unfair labor practice based on its discriminatory effect on union solicitation.

nlrb

The Board determined that an employer who restricted the use of its e-mail system to work-related business did not violate section 8(a)(1) of the NLRA when it applied this rule to Section 7 activity. The Board majority held that an employers email system is company property that employees have no statutory right to use. Although the decision offered some insight into the limits of e-mail usage policies, it was not the definitive resolution many had hoped for.

The Application of Register-Guard to the Unionized Workplace

Then, on May 15, 2008, NLRB General Counsel Ronald Meisburg issued a memorandum describing the Boards application of the holding in Register-Guard. Since the Register-Guard decision, Regional Officers have submitted discrimination cases involving company property to the Division of Advice. Labor and employment law blog, the Washington Labor & Employment Wire reports on the determinations reached by the Division of Advice:

  1. An employer did not violate the Act by enforcing a rule that barred union officials from sending e-mails to company managers outside of the facility. The union used the company’s e-mail system to send broadly distributed messages to company managers outside the facility. The Division determined that the company’ rule was lawful because it concerned how the union was permitted to use the employer’s e-mail system and did not otherwise prohibit the union from engaging in protected communications.
  2. An employer’s rule that prohibits solicitation for any purpose during work hours was unlawful when applied to union activity.  The employer inconsistently enforced this policy by permitting non-union-related solicitation activity including institutional and individual commercial solicitations, school fundraising solicitations, and personal solicitations. The Division reasoned that an employer may not discriminatorily enforce a facially valid no-e-mail-solicitation rule.
  3. A rule that was re-promulgated after union organizing activities began at the employer’s site was a violation of the Act. After an employee sent emails about a union meeting, the employee was disciplined for misusing the employer’s email system. Prior to sending the email, the employee checked with the employer’s IT director to determine what was considered abuse of the employer’s computer system. The IT director did not inform the employee that personal email or email solicitation was against employer policy.     The case initially settled after an investigation revealed that the employee was disciplined because of union activity. Subsequently, the employer again disciplined the same employee for sending another email with union-related content. The Division concluded that the employer re-promulgated its email rule for anti-union reasons, and discriminatorily enforced the rule against union activity.
  4. An employer violated the Act when it discriminatorily enforced its electronic communications policy against an employee. The employer terminated the employment of an employee after the employer learned that the employee was the author of an email sent to the employer’s Board of Directors that listed concerns that employees had about working conditions. The employer alleged that the employee was terminated for inappropriately using the employer’s computers in violation of its policy.           The Division found that the employer unlawfully discharged the employee for engaging in protected activities. The Division noted that the employer’s email policy allowed reasonable personal use of the employer’s computer and the employer permitted employees’ use of the Internet, email, and other company equipment for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.
  5. An employer violated the Act when it discriminatorily prohibited use of its employee bulletin board. A union organization event was held at one of the employer’s stores during which union material was placed on a bulletin board within the store designated for employees. The bulletin board was used for personal and general non-work related matters. The union material was taken down and the employer later turned the bulletin board into a management-only posting site. The Division concluded that the facts established an anti-union motive because the timing of the employer’s conduct and the actions themselves were directly in response to the union activity.

These decisions reinforce the presumptive rule: an employer may not use facially neutral rules to effectuate anti-union animus nor may an employer discriminatorily enforce rules to prohibit protected collective activity.

What Other Employment-Law Blogs Are Saying

Since the General Counsel’s memo was released, several employment-law bloggers have given additional discussion to the limits of workplace policies on personal e-mail usage. Some of the most informative posts include The Manpower Employment Law Blog’s post, “Everything You Ever Wanted to Know About the New Union Email Rules,” which was subsequently picked up by The Laconic Law Blog. The Ohio Employers’ Law Blog tells us “How to Apply the New E-Mail Solicitation Rules.”   And, earlier in the month, the Workplace Profs Blog posted about the General Counsel’s Memo.

Contact Information