United States: Employer Violated NLRA By Disciplining An Employee For Displaying A Union-Related Computer Screen Saver Message

Co-authored by George Blake

Ruling on an issue of first impression, the National Labor Relations Board unanimously affirmed the ruling of an Administrative Law Judge that an employer violated the National Labor Relations Act ("Act") by prohibiting an employee from displaying a union-related screen saver message on her company-issued computer and by issuing a warning to her for displaying the message.

In St. Joseph Hospital, 337 NLRB No. 12 (Dec. 12, 2001), the employer operated a hospital with an intensive care unit ("ICU"). The ICU contained multiple computers that were available for use by the nurses in the department. At all relevant times, the employer allowed ICU nurses to display personalized screen saver messages on the computers.

After a union began an organizing campaign at the hospital, a nurse (Elalem) in the ICU department programmed a screen saver message that said "Look for the U." Elalem’s supervisor, who was aware that Elalem supported the Union, interpreted the "U" in the screen saver message to mean "Union," and Elalem testified that the "U" meant "Union." On the same day that Elalem posted the message, the supervisor held a meeting with Elalem in which the supervisor showed Elalem a document entitled "Written Record of Verbal Warning." The document referred to the "union related" content of the screen saver message, and further stated: "Advised employee that bulletin boards and screen savers are hospital property and it is inappropriate to post pro union messages on hospital property or while on time clock." The supervisor told Elalem she was being "written up for union activity, using hospital equipment for union activity."

Because no other prior Board case presented a similar factual pattern, the parties presented to the Board their theories on what principles should be applied by it in resolving the case. The employer contended that the principles applicable to company bulletin boards should govern. Under those principles, an employer has the right to restrict the use of bulletin boards, but that right may not be exercised discriminatorily. Board precedent establishes that discrimination exists if the employer allows employees to post nonwork-related personal notices on bulletin boards (e.g., messages for the sale of personal property, cards and thank you notes), but does not allow the posting of union-related information.

On the other hand, the General Counsel contended that the principles applicable to the wearing of union insignia should control the Board’s resolution of the case. Those principles recognize that employees have a protected right to wear union insignia at work in the absence of "special circumstances."

The Board expressly declined to reach a holding on what principles should be applied to the case. Instead, the Board concluded that the employer violated the NLRA even if it applied the principles the employer urged the Board to adopt – the principles applicable to employer bulletin boards. Specifically, the Board found that the employer routinely permitted ICU nurses to display many types of screen savers containing personal messages. Because the employer prohibited Elalem from posting a personal, union-related message, the Board concluded that the employer engaged in unlawful discrimination under the NLRA. For the same reasons, the Board concluded that the employer violated the NLRA by issuing a warning to Elalem based upon the screen saver message.

St. Joseph’s Hospital establishes that employers must exercise the same precautions with respect to computer screen saver messages or computer "wallpaper" as they do with respect to their bulletin boards. If employers seek to restrict the posting of personal messages on their property (including on computers), an effective and enforced policy is the best method of accomplishing that goal.