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  1. 1. The National Labor Relations Board recently ruled that an employer did not violate the National Labor Relations Act by maintaining a policy that prohibits employee use of the employer's email system for "non-job-related solicitations," including union solicitations. This article explains the decision, the dissent's reasoning, and the practical ramifications of the ruling. A sharply divided National Labor Relations Board (NLRB) has ruled that an employer did not violate the National Labor Relations Act (NLRA) by maintaining a policy that prohibits employee use of the employer's email system for "non-job-related solicitations," including union solicitations. 1 The NLRB ruling addressed for the first time whether, for purposes of the NLRA, email communications by employees using the employer's email system should be treated in the same way as face-to-face solicitations, or whether they should be treated in the same way as employee communications using other employer-owned communication equipment, such as telephones and bulletin boards. The answer to this question was critical because the NLRB, with court approval, historically has held that employees have no statutory right to use an employer's equipment or media to engage in union organizing activities-so-called "Section 7" communications, whereas employers must permit employees to engage in face-to-face oral solicitations on nonworking time and to distribute literature on non-working time and in non-working areas. Background The Register-Guard (the Guard), a daily newspaper in Oregon, maintained a communications systems policy (CSP) that governed employee use of the Guard's communication systems, including email. The CSP stated, in relevant part: Company communication systems and the equipment used to operate the communication systems are owned and provided by the Company to assist in conducting the business of the Register Guard. Communication 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. 2 Employees regularly used the Guard's email systems to send and receive personal messages, such as baby announcements, party invitations, and offers for sports tickets; however, the NLRB found no evidence that the email systems ever were used by employees to solicit support for participation in any outside cause or organization except the United Way, an organization for which the Guard conducted periodic charitable campaigns. In May and August 2000, union president Suzi Prozanski received written warnings for sending three emails to union employees at their Guard email addresses. The first email, which was sent by Ms. Prozanski from a Guard computer during a work break, involved a union rally that took place on May 1, 2000. The purpose of the email was to clarify incorrect information regarding the rally that had been distributed by the Guard's managing editor. Ms. Prozanski received a written warning that her use of Guard email to conduct union business violated the CSP. The second email requested that employees wear green to support the union's position in contract negotiations and the third email asked employees to participate in the union's entry in an upcoming parade. The second and third emails were sent in August 2000 from a computer in the union's office. Ms. Prozanski received a warning that these August 2000 emails violated the CSP's prohibition against "non-job-related solicitations." NLRB Decision As noted, the threshold question facing the NLRB in Guard Publishing-whether to treat employee email communications over the employer's email system in the same way as face-to-face solicitations,
  2. 2. or whether to treat them as employee communications using other employer-owned communication equipment, such as telephones and bulletin boards-was particularly important because of the NLRB's historical position that employees have no statutory right to use an employer's equipment or media to engage in Section 7 union organizing activities. Under Section 7 of the NLRA, employees have the right to engage in protected concerted activities-typically group activities-aimed at improving working conditions, such as wages and benefits. Although Section 7 protects the right of employees to engage in protected concerted activities with or without a union, Section 7 cases typically involve union organizing and other union-related activities, as well as the alleged unequal enforcement of workplace rules against such union-related activities. In Guard Publishing, the NLRB acknowledged that email has had a substantial impact on communication activities, both at the workplace and from remote locations. Nonetheless, it rejected the analogy to face-to-face solicitation, holding instead that email systems and communications using those systems should be treated like other employer-owned communication equipment. As the NLRB explained, "[a]n employer has a basic property right to regulate and restrict use of company property," including the email system, and that the Guard could "lawfully bar employees' non work related use of its email system, unless the [Guard] acts in a manner that discriminates against Section 7 activity." 3 On this question-whether the Guard had enforced the CSP in a discriminatory manner-the long- standing NLRB precedent held that if an employer permits employees to use its communication equipment for any non-work-related purposes, then the employer must allow employees to use that equipment for union organizing or other union-related purposes. For example, if an employer permitted employees use of its bulletin board for charitable solicitations or the sale of tickets, then the employer would be required to allow the use of its bulletin board for union organizing. Significantly, in Guard Publishing, the NLRB overruled this line of authority and instead followed a discrimination test fashioned by the US Court of Appeals for the Seventh Circuit. Citing the Seventh Circuit's decisions in Fleming Co. v. NLRB 4 and Guardian Industries v. NLRB, 5 both of which relied on the Seventh Circuit's discrimination test to deny enforcement of NLRB decisions, the NLRB found that discrimination means the "unequal treatment of equals." This formulation required that union- related communications be compared to non-work-related communications of a similar character, such as non-charitable outside groups or organizations. As the NLRB explained: An employer may draw a line between charitable solicitations and noncharitable 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. 6 By way of example, an employer would violate the NLRA if it permitted solicitation by anti-union employees but not pro-union employees, or for non-charitable outside groups or organizations but not for a union. Thus, the mere fact that union solicitation might be prohibited by such a rule did not establish that the rule discriminates along Section 7 lines. Therefore, in examining the Guard's enforcement of the CSP, the NLRB examined the emails in question to determine whether the Guard discriminated against Ms. Prozanski under the NLRB's new standard. The NLRB found that while employees were permitted to use Guard email to send personal messages, there was no evidence to indicate that employees were permitted to use Guard email to solicit support for any groups or organizations (except the United Way, an organization for which the Guard conducted periodic charitable campaigns). Accordingly, in reprimanding Ms. Prozanski for her second
  3. 3. and third emails, which solicited support for the union, the Guard did not discriminate along Section 7 lines and therefore did not violate the NLRA. The NLRB held, however, that Ms. Prozanski's first email was not a solicitation or a call for action, but merely a factual assertion. Notably, the CSP only prohibited "non-job-related solicitations," not all non- jobrelated communications and, indeed, the Guard permitted a variety of other non-work-related emails. Consequently, the prohibition of unionrelated communications, such as the factual email sent by Ms. Prozanski, constituted discriminatory enforcement of the CSP and violated Section 8(a)(1) of the NLRA, which prohibits employers from interfering with employees' exercise of their Section 7 rights. The Dissent Noting that email "has transformed modern communications," the two dissenting NLRB members characterized the NLRB as the "Rip Van Winkle of administrative agencies," argued that it was "absurd" to treat email like other employer-owned communication equipment, such as telephones and bulletin boards, and stated that they would have analyzed email under the rules that apply to face-to- face solicitations. Under that analysis, the dissent would have found that the Guard discriminated against Ms. Prozanski regarding all three emails. Where, as here, an employer has given employees access to email for regular, routine use in their work, we would find that banning all non-work-related 'Solicitations' is presumptively unlawful absent special circumstances... 7 According to the dissent, the Guard did not demonstrate any special circumstances to justify its enforcement of the CSP. The dissent also took issue with the NLRB's new discrimination standard, stating that they dissented "in the strongest possible terms, from the majority's overruling of bedrock NLRB precedent about the meaning of discrimination as applied to Section 8(a)(1). 8 More specifically, the dissent disagreed with the Seventh Circuit's narrower standard for finding discrimination, explaining that the Seventh Circuit's standard was based on discrimination case law. Unlike discrimination statutes, the [NLRA] does not merely give employees the right to be free from discrimination based on union activity. It gives them the affirmative right to engage in concerted group action for mutual benefit and protection. 9 Practical Impact Although the NLRB's long-anticipated decision in Guard Publishing is favorable to employers and answers many questions regarding the lawfulness of prohibiting non-work-related emails, the NLRB left open the possibility that the traditional face-to-face solicitation rules might apply to email policies in workplaces where email communication effectively replaced face-to-face communication or where employees do not have a realistic opportunity for face-to-face communication. These situations include instances where employees work exclusively from home or travel and communicate with co-workers only by email. The NLRB also stated that an email policy could be found unlawful if it were implemented for the purpose of interfering with the employees' exercise of their Section 7 rights, perhaps where an employer promulgated a ban on personal emails in the midst of a union organizing campaign, and if the policy expressly prohibits union-related emails. To take advantage of the flexibility provided under the Guard Publishing decision, companies should review their existing email policies. In doing so, companies must first determine the scope of the prohibition of non-work-related emails. A ban on all non-work-related emails-regardless of the purpose-may well be perceived as draconian by employees and difficult, if not impossible, to enforce on a consistent and non-discriminatory basis. A prohibition against all personal emails would include
  4. 4. solicitations for school candy sales and asking which colleagues were available for lunch. If the employer did not monitor and discipline for using the company's email for such routine communications, then the company almost certainly could not enforce the policy against union-related solicitations without violating the NLRA. In revising email policies, companies likely will prohibit the use of email for certain categories of non- work-related emails, such as non-charitable solicitations and solicitations for outside groups, organizations or businesses while permitting occasional charitable solicitations and personal emails that do not interfere with job performance and that are consistent with the company's email and non- discrimination and anti-harassment policies. A limitation on non-work-related emails along these lines is likely to be perceived as more reasonable by employees and easier to enforce. The NLRB's ruling in Guard Publishing may well not be the last word on this subject. It is possible that the union may seek appellate court review and try to persuade a circuit court to deny enforcement of the NLRB's decision. It is also possible that employees and unions will seek to test the parameters of the NLRB's new discrimination standard.