In an important decision released on December 21, 2007, the National Labor Relations Board (the "Board") ruled that an employer may lawfully bar employees' nonwork-related use of its e-mail system, unless the employer acts in a manner that discriminates against Section 7 activity. Guard Publishing Company d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007).
In Register-Guard, the employer, a newspaper publisher, maintained a written policy that provided that its communications systems, including e-mail, "are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job related solicitations."
According to the Board, whether employees have a specific right under the National Labor Relations Act (the "Act") to use an employer's e-mail system for Section 7 activity is an issue of first impression. The Board noted that the employer's policy does not regulate traditional, face-to-face solicitation, and that employees at the employer's workplace have the "full panoply of rights to engage in oral solicitation on nonworking time in nonwork areas." The Board therefore found no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer's equipment or media for Section 7 communications. Since the employer's policy on its face did not discriminate against Section 7 activity, the Board found that the employer did not violate Section 8(a)(1) of the Act by maintaining the policy.
The Board also adopted a new approach and found that unlawful discrimination consists of disparate treatment or activities or communications of a similar character because of their union or other Section 7-protected status. While the employer tolerated a number of personal employee e-mail messages, there was no evidence that the employer permitted employees to use e-mail to solicit other employees to support any group or organization. Accordingly, the Board found that the employer's discipline of the union's president for sending e-mails urging employees to take action in support of the union did not discriminate along Section 7 lines, and therefore did not violate Section 8(a)(1) of the Act.
Bottom Line
This decision was 3-2, with Chairman Battista (R) and Members Schaumber (R) and Kirsanow (R) in the majority and Members Liebman (D) and Walsh (D) in dissent. The dissent argued that "given the unique characteristics of e-mail and the way it has transformed modern communications, it is simply absurd to find an e-mail system analogous to a telephone, a television set, a bulletin board, or a slip of scrap paper." The dissent also stated, "We ...dissent, in the strongest possible terms, from the majority's overruling of bedrock Board precedent about the meaning of discrimination as applied to Section 8(a)(1)."
Because of the strong dissent, and the fact that Chairman Battista's term has now expired, this decision may not be the last word on the extent to which employers may restrict e-mail communications by employees. However, in the meantime, this decision does provide important flexibility and new guidelines for employers to follow in drafting and enforcing valid e-mail communication policies.
The decision may also be accessed online on the NLRB site.
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