The following is the text of another client alert our L&E team sent out yesterday.
On Sunday, December 16, the last day of the term of NLRB Chairman, Robert Battista, the Board issued a long awaited decision on employer e-mail policies. The Guard Publishing Co., 351 NLRB No. 70 (2007). This decision represents a significant change in the way the NLRB addresses the rights of employers to control their property. Since the decision applies to all private employers, whether they are union or nonunion, companies should review promptly their e-mail and related policies.
History
Reading Section 7 of the National Labor Relations Act and a 1945 U.S. Supreme Court decision expansively, the NLRB had fashioned rules which held that employers could not discriminate in denying their employees use of the employers' facilities or resources for "collective" (or union organizing) purposes. The Board read the term "discrimination" so broadly that employers had to choose between permitting non-employee solicitations, such as the Salvation Army bell ringer, and the ability to exclude union pickets from their property. Similarly, an employer permitted email use for personal reasons, it could expect the Board's General Counsel to argue it could not prohibit employees from using its email system for union related purposes, including organizing, Therefore, if an employer knowingly allowed personal use, the General Counsel would argue that it was illegal discrimination for it to enforce a "business use only" restriction against pro-union use of its e-mails. A number of federal circuit courts were quite critical of the Board's broad reading of discrimination but the Board persisted.
The Decision
Like so many modern businesses, the employer newspaper company in Guard Publishing provided computers and email to its employees for use on the job. It also maintained a computer use policy which prohibited, in part, "non-job-related solicitations." Despite this policy, an employee union president, among other things at issue in the case, on two occasions sent emails from a computer in the union's office to employees at the its company e-mail addresses soliciting union support. The first, sent on August 14, 2000, urged employees to wear green to support ongoing negotiations, and the second, sent on August 18, 2000, encouraged employees to support the union's entry in an upcoming town parade. The employee received a written warning for the emails. The Union filed a charge against the employer on multiple factual grounds, including the two August 2000 emails and subsequent discipline based on the employer policy.
The controlling issues were the appropriate analogy for e-mail and what constituted discrimination. The employer briefs argued that e-mail was an employer provided resource such as telephones, bulletin boards or copying machines and was subject to abuse so that employers could control access with non-discriminatory rules. The Board's General Counsel and AFL-CIO argued that e-mail was more like rest areas and cafeterias, where employees could not be limited in their "speech" or information exchanges except on a special showing of need.
The Board agreed with the Employer's position but went further. First, it held that the employer's policy was valid. The Board concluded that the e-mail system was the employer's property and that the employees had no Section 7 right to use it for organizing purposes. It rejected the union and General Counsel's argument that the employer had to show "special circumstances" before limiting employee access for organizational purposes.
Next, the Board ruled that the employer's enforcement of its policy was not discriminatory, even though some non-business email was permitted. Citing Seventh Circuit case law, the Board held that "in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status." (Section 7 allows employees to join together to form a union or engage in other "concerted activities.") Applying this analysis to the August 2000 emails, the Board noted that, although the employer "tolerated personal employee e-mail messages concerning social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or other similar personal items" 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 held the enforcement did not discriminate along Section 7 lines and was therefore permissible.
What Does this Mean?
With respect to e-mail policies, employers may now "distinguish between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations to support any group or organization such as unions, political parties or religious groups. Allowing the employer to distinguish between personal and organization interests is extremely important, because the Board had previously held that if an employer allows employees to discuss personal matters, such as athletic scores, news or family affairs, it could not prohibit discussions of union matters.
Equally important, the Board clearly intends this new understanding of discrimination to apply in other contexts, including right of access to employers' property and internal non-solicitation/no distribution policies, although it excluded situations in which employees had no opportunity for face-to-face communication.
Ultimate Significance
The decision may provide less than had originally been hoped. It came in the 7th year of the Bush administration and with the expiration of Chairman Battista's term. The Board is now divided between two Democratic and two Republican Members. Members Walsh and Kirsanow serve as recess appointees, and their terms will end when the U.S. Senate adjourns in January, leaving only two members (one who voted with the majority and one who dissented). There will be limited opportunity for the President to make additional recess appointments, and it is highly unlikely that he will get Senate confirmation for two additional Republican Members, and an evenly divided Board will not likely extend the logic of Guard.
Equally important, there will be no time for appeals to the Courts of Appeal. Had they reviewed and enforced this or subsequent decisions, it would have been more difficult for the next Board majority to overturn. If the next Board is appointed by a Democratic president, overturning Guard Publishing will be high on its priority list.
In the meantime, employers now for the first time have firm guidance for e-mail policies and at the same time should reassess their access policies as well.