NLRB Allows Employers to Prohibit All Employee Non-Job-Related E-Mail Solicitations, Even if for Union Purposes
In a ruling last month, the National Labor Relations Board allowed employers to uniformly prohibit use of company e-mail for e-mail solicitations to other employees, even if those solicitations were to organize union-related activities on behalf of employees. In The Guard Publishing Company, 351 N.L.R.B. No. 70 (2007), the employer implemented a policy prohibiting employees from engaging in non-job-related e-mail solicitations. Based upon this policy, the employer disciplined an employee, the union president, for sending e-mails to other employees requesting that employees wear green and participate in a parade to show union solidarity. The union charged that this discipline unlawfully discriminated against union-related activities.
The NLRB held that an employer may “lawfully bar employees’ non-work-related use of its e-mail system, unless the [employer] acts in a manner that discriminates against Section 7 activity.” The NLRB further held that because the non-solicitation policy “on its face does not discriminate against Section 7 activity,” the union’s discrimination charge with respect to the two e-mails was without merit. Key to the NLRB’s decision was the fact that the company did not discriminate by applying the non-solicitation policy to only union-related solicitations. If the company had only enforced the policy against union-related solicitations while allowing other non-job-related solicitations to proceed unfettered, the policy would have indeed constituted unlawful discrimination under the National Labor Relations Act.
The Guard Publishing decision allows employers to enforce non-discriminatory e-mail policies uniformly, even if union-related activity is involved. Employers, however, should still be mindful that such a policy will be closely scrutinized to make sure that enforcement is uniform and not discriminatory in violation of the National Labor Relations Act. If you have any questions regarding the implications of this decision for your business, please contact us directly.