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D.C. Circuit Sets Aside NLRB Ruling that Expanded an Employer’s Ability to Restrict Employees’ Use of Company E-Mail for Union Solicitation Purposes

July 21, 2009

In a much anticipated decision in 2007, the National Labor Relations Board (the “Board”) ruled that an employer may lawfully prohibit its employees’ use of company e-mail to solicit support for outside businesses and organizations, including labor unions, even if the employer permits personal use of the company e-mail system for other types of private solicitations.  Guard Publishing Co., 351 N.L.R.B. 1110 (2007)  (A detailed discussion of the Board’s decision can be found in the article “NLRB Rules That Employers May Restrict Employees’ Union Solicitation on Company E-Mail” on this website.)  Earlier this month, however, the United States Court of Appeals for the District of Columbia Circuit overturned the NLRB’s ruling, creating new uncertainty in the law relating to the use of e-mail for union solicitation. Guard Publishing Co. v. NLRB, No. 07-1528 (D.C.Cir., July 7, 2009).  

Fundamental to the Board’s ruling was its conclusion that the employer’s policy was not discriminatory: even though the employer permitted personal use of its e-mail system for individualized communications, its prohibition on union solicitation was lawful because the employer claimed to prohibit all solicitation for outside organizations.  The Court of Appeals expressly declined to address the correctness of the Board’s rationale because the court found instead that the employer’s non-solicitation policy actually failed to differentiate between different types of solicitations (i.e., individual solicitations vs. those on behalf of organizations) and because the employer had not previously interpreted or enforced the policy in such a manner.  The court’s decision thus reopens the question that the Board had previously answered in the affirmative: whether an employer lawfully can adopt and uniformly enforce a non-solicitation policy that prohibits all employee solicitations on behalf of organizations, including unions, via company e-mail, while still permitting personal solicitations.  This question likely will not be answered until the Board has an opportunity to address it again in a future case. 

How the Board will rule on this issue in future cases is difficult to predict for several reasons, not the least of which is that the Guard Publishing decision was issued by a narrow 3-2 majority of the Board that broke along party lines.  In light of the fact that President Obama has already appointed two union-friendly Board members and the fact that the Guard Publishing decision, at least in the opinion of the two dissenting Board members, overturned the Board’s long-settled standards for evaluating the enforcement of employer non-solicitation policies, it is far from certain that the Board will reach the same outcome when it next addresses the issue of union solicitation via e-mail.  Indeed, it is entirely possible that a newly constituted Board, with a Democratic majority, may adopt the dissenters’ view that once an employer gives employees e-mail access for regular, routine use in their work, the e-mail system becomes a part of the workplace in which the employees should be allowed to communicate for or against union representation.  

For now, however, the court’s decision, importantly, does not disturb the Board’s ruling in Guard Publishing that an employee has no statutory right to use an employer’s e-mail system for union organizing purposes or other activities protected by the National Labor Relations Act.  Thus, an employer may, at present, prohibit all non-business use of company e-mail systems. 

On a separate issue concerning the definition of “solicitation,” the Court of Appeals also upheld the Board’s ruling that an e-mail from the union President setting forth the union’s version of events at an earlier rally did not call for the employees to take any action and thus was not a “solicitation” prohibited by the employer’s non-solicitation policy.  The court therefore upheld the Board’s finding that the disciplinary warning issued to the union President by the employer relating to that message was an unfair labor practice.

The practical impact of the Guard Publishing decision for management is complex and difficult to predict.  At the very least, however, all employers should review their policies on non-solicitation and use of company equipment in light of the following considerations.

First, an employer may lawfully prohibit all non-business use of its communications equipment, typically telephones and e-mail, by employees.   

Second, if the employer chooses to permit some personal use of the company telephone or e-mail systems by employees, it must equally permit employees to use such systems to communicate about (as distinct from “solicit” for) labor unions.  Mere discussions of union activity may not be discriminatorily prohibited when other personal “talk” is allowed. 

Third, it is not clear whether telephone or e-mail messages that constitute “solicitations” -- that is, a request or suggestion that an employee take some action, such as a signing a membership card, attending a meeting, or buying a commercial product -- will continue to be subject to different considerations depending on whether they are personal solicitations or solicitations on behalf of an organization.  In view of the changing composition of the Board and the Court of Appeals decision, it may be imprudent for employers to rely on the standard set forth by the Board in its earlier Guard Publishing ruling.

Fourth, an employer’s ability to limit union solicitations made through the use of the company’s e-mail or telephone systems should not be confused with its ability to limit in-person solicitation by employees.  The Board has long held that an employee’s right to solicit another employee in person may be prohibited only during the working time of either of the employees involved in the exchange.  Put another way, face-to-face solicitation relating to unions must be permitted between employees who are on breaks, during meal periods and before and after their work time at the company facility.

In view of the intricacies of no-solicitation rules generally, and the current confusion concerning rules regarding company communications equipment, all employers should obtain legal advice to ensure that those policies and their enforcement comply with the law in the wake of the recent Guard Publishing decisions.