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No employee right to use company e-Mail for union organizing

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in Employment Law,Human Resources,Leaders & Managers,People Management

The National Labor Relations Board (NLRB) has concluded that employers are free to forbid employee use of their systems for “nonjob-related solicitations.” The long-awaited decision—involving employees’ use of e-mail for union communications at The Register-Guard newspaper in Eugene, OR—says that an employer has the right to restrict use of its e-mail system based on its property interest in the computer equipment. (The Guard Publishing Company, dba The Register-Guard, Cases 36-CA-8743-1, et al., 2007)

At issue was the following company rule:

Company communications systems and the equipment used to operate the communications system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations or other nonjob-related solicitations.

Restrict equipment usage, not communications

While the NLRB said employers have the right to control the use of their equipment, it did not say employers are free to interfere with employee communications. On the contrary, it was careful to recognize employees’ rights to communicate about their union activities or sentiments.

Indeed, the employees’ ability to communicate in other ways at work was an important factor in the decision. Those alternate means of communicating do not, however, have to be the most convenient or most effective mediums.

The case of the 3 e-mails

The facts are fairly straightforward. The rule existed. Employees used e-mail to communicate about work-related matters, but also sent messages about nonwork-related personal matters—jokes, baby announcements, party invitations and offers of sports tickets. There was no evidence that employees used the e-mail system to solicit support for any outside cause or organization (other than the company’s annual United Way campaign).

After the president of the newspaper employees’ union sent three e-mails, the paper warned her that she was violating company communications policy. One e-mail tried to clarify what the union president thought was inaccurate information from the company.

The other two urged union members to wear green on a certain day to support the union and to participate in the union’s entry in a town parade. An administrative law judge held that both of those warnings to the union president were unlawful. The NLRB reversed, saying they were legal.

E-mail’s workplace role

The NLRB rejected arguments that the e-mail system was the equivalent of face-to-face communications and that it was essentially a “gathering place” at work. It also rejected the argument that the employer lost its right to enforce its property rights because it permitted personal communications.

Instead, the NLRB upheld the employer’s property rights (citing cases where employers protected their property rights in phone systems and bulletin boards, for example) and ruled that it’s fine to permit personal communications while banning nonbusiness solicitations.

The NLRB said if an employer bans a type of communication, it must do so fairly and equally. It cannot, for example, allow employees who don’t support a union to use the e-mail system, while prohibiting those who support the union from using it.

On the other hand, “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), invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use.”

Drawing the line

Thus, the NLRB ruled the union president should not have been punished for sending the first e-mail, in which she
explained her position on a work issue to other employees. Since the company allowed personal communications between employees, this one was permissible.

But the other two e-mails asking the employees to wear green and participate in the parade were found to be nonbusiness-related solicitations. Because the company’s rule did not permit that, she could be punished for those e-mails.

This ruling won’t end the e-mail issue. It was a bitterly contested 3-2 decision. Expect continued challenges to company restrictions, especially should NLRB membership change after the coming elections.
Jimmie Stewart is a shareholder in the Greenville, SC, office of Ogletree Deakins and a nationally recognized expert on NLRB matters. 

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