No Right to Use Company E-Mail Systems for Union Business
The National Labor Relations Board recently issued a long awaited decision pertaining to an employer’s right to restrict employee use of company e-mail systems for union business. The Guard Publishing Co. and NLRB , 351 NLRB No. 70 (Dec. 16, 2007). In a 3-2 decision the Board held there is no statutory right to use company systems for union business, and that companies may enforce policies that prohibit the use of such systems, provided any limitations are imposed without an anti-union purpose. It also reiterated that employers may impose similar restrictions on the use of company bulletin boards, copy machines, public address systems, and telephones.
In this case the company established a communications systems policy stating its 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.” The company did permit employees to send and receive personal messages, including birth announcements and party invitations. It did not permit employees to use the system to solicit support for, or to participate in any outside cause or organization, except for periodic charitable campaigns such as the United Way.
When the local union president sent an e-mail to all union members clarifying a misleading company announcement she was disciplined. She later sent two more e-mails asking union members to wear green in support of the union during negotiations, and to participate in a local parade on behalf of the union. She was disciplined again for sending those e-mails.
The
Board found the first discipline unlawful, while upholding the discipline
issued for the two later e-mails. In
comparing the incidents, the Board noted the policy prohibited non-work related
solicitations, not all non-work related communications. By permitting communication of non-work
related messages such as birth announcements the company could not bar non-work
related communication on topics of interest to union employees.
The two later e-mails, however, fell into the solicitation category as they encouraged employees to take action in support of an outside organization, the union, by wearing green and participating in a parade. As the company consistently prohibited the use of the system to encourage action on behalf of any outside organization, the NLRB held it could similarly prohibit the encouragement of union related activities.
While the ruling provides greater guidance on how policies must be drafted to pass legal muster the distinctions are fairly nuanced and employers may want to seek legal counsel to review existing or proposed policies in this area
