Employers Await NLRB Decisions on the Permissible Scope of E-Mail Policies
The use of e-mail and the Internet to share information has not only revolutionized business, but has greatly affected the "business" of union organizing as well. The traditional picture of a union organizer handing out leaflets outside a factory gate has largely been replaced by union solicitations via e-mail, internal electronic communications among employees seeking to organize, and even the appearance of union authorization cards available for downloading from union websites. As employers have sought to limit the use of their e-mail and internet systems for these purposes, the National Labor Relations Board ("NLRB" or the "Board") has been called upon with increasing frequency to consider how rules under the National Labor Relations Act (the "NLRA") relating to more traditional forms of organizing activity will apply to these new forms of communication.
In two recent cases, NLRB Administrative Law Judges ("ALJ") have ruled that employers committed unfair labor practices by interfering with the use of e-mail for purposes of union organizing and other union activity. While violations of the NLRA were found in both cases, the analyses which led to those results, and the implications for employers, differ dramatically. In one case, the ALJ, applying a traditional analysis, recognized that an employer may prohibit all non-business use (including union-related use) of its e-mail system; he found that the employer in question acted unlawfully only because it applied its policy in a discriminatory fashion, prohibiting union solicitation via e-mail while permitting a wide array of other personal uses. The result in the other case was far more sweeping. The ALJ there determined that an employer's prohibition on all non-business use of its e-mail system was itself unlawful, even in the absence of evidence that the rule was discriminatorily applied, because the policy unduly interfered with the rights of employees to engage in organizing activity protected under Section 7 of the NLRA.
Both rulings are on appeal to the full NLRB in Washington, and we anticipate that the Board's decisions will provide significant guidance to employers in this evolving area.
Discriminatory Application Of E-Mail Policy Violates The NLRA
In the first case, The Register Guard, Case No. 36-CA-8743-1 (ALJ decision, 2/21/02), a newspaper employee (the union president) sent e-mails to co-workers seeking support for a union-sponsored rally and urging them to wear green armbands in support of the union's efforts to secure a wage increase. The employer issued a warning to the employee for violating the company's e-mail policy, which prohibited the use of the e-mail system for all non-job-related solicitations. The union filed an unfair labor practice charge, claiming that the issuance of the warning was an unlawful interference with union activity.
The union first mounted a broad challenge to the employer's prohibition on all non-job-related use of e-mail, arguing that the policy was itself unlawful. The union relied upon longstanding Board case law applicable to traditional forms of solicitation, under which an employer may not prohibit all non-job-related solicitation on company premises, but may prohibit such solicitation only during working time. The union argued that the employer's policy was unlawful because the prohibition on the use of the e-mail system for solicitation activity was not limited to working time. However, the ALJ rejected this argument; he ruled instead that "the Board has consistently found that employers may non-discriminatorily limit the use of their communications equipment without infringing on employees' rights to solicit."
Nevertheless, the ALJ found that the employer committed an unfair labor practice by issuing the warning, because of its discriminatory application of the policy. The evidence showed that, notwithstanding the terms of the policy, the employer in practice permitted a wide array of personal use of the e-mail system by employees. Based on this discriminatory application of the policy, the ALJ concluded, it was unlawful for the employer to issue the warning for the employee's union-related use.
The union also alleged that a bargaining proposal made by the employer in its effort to prevent the use of the e-mail system for union purposes was unlawful. The employer's proposal stated that "The electronic communications systems are the property of the Employer and are provided for business use only. They may not be used for union business." The ALJ found that this proposal was illegal. Again citing the evidence of widespread non-business use of the e-mail system, the ALJ concluded that the bargaining proposal was an "unlawful codification of a discriminatory policy."
A familiar lesson for employers: e-mail policies, like traditional non-solicitation policies, must be enforced in a non-discriminatory manner. Under Register Guard, provided they do not discriminate against union-related solicitation, employers may prohibit all non-business use of e-mail.
Overbroad E-Mail Policy Invalidates Election
The second case pending before the Board, Prudential Insurance Co., Case No. 22-RC-12173 (ALJ decision, 11/1/02), has far more significant implications for employers. That case also involved an e-mail policy providing that the e-mail system was to be used "for business communications" and "solely for business purposes." The ALJ ruled that this policy was overbroad and illegal, without regard to whether it was discriminatorily applied. As a result of this finding, the ALJ overturned the employer's victory in a representation election and ordered that a new election be held.
In evaluating this policy, the ALJ first reviewed the established principles governing traditional employee solicitation and distribution activities. As discussed by the ALJ in the Register Guard case, the Board has consistently ruled that an employer may prohibit solicitation activities by employees during working time. The Board has applied a different rule to the distribution of written materials. Unlike oral solicitation, distribution activity creates the possibility of litter, which may interfere with productivity; employers therefore may prohibit the distribution of written materials in work areas at any time (working time or non-working time).
The ALJ also took note of Board case law governing employee access to employer-provided bulletin boards and telephone systems. Generally, provided it applies its rule in a non-discriminatory fashion and does not single out union-related activity, an employer may prohibit all non-business use of its telephones and bulletin boards. The Board has recognized that since these media are limited in size and capacity, an employer should not be required to allow employee non-business use, which could interfere with the intended business uses.
Having reviewed the principles applicable to solicitation and distribution in traditional media, the ALJ concluded that e-mail differed from all of them and that "e-mail should have a pigeonhole of its own" under Board law. E-mail shares characteristics with both oral solicitations and written distributions, and is not clearly analogous to either. Like an oral solicitation, an e-mail message is conveyed virtually in real time; like a written distribution, an e-mail involves the transmittal of written text. And while the transmission of an e-mail is in some sense comparable to a posting on an electronic bulletin board, such a "bulletin board" does not carry the space limitations that characterize an ordinary bulletin board.
The ALJ also took note of certain special circumstances in which the employees in question were employed. The employees performed services relating to the employer's insurance business. They did not have a fixed workplace; they performed their duties at various remote locations, including client offices, their own homes, or offices they rented for their own use, and they were provided with laptop computers to access the company's e-mail system. Thus, the concept of "work area" was difficult to apply to these employees, since the "work area" might be a company facility, but also might be a client's location or the employee's own home -- "wherever the employee happens to be at the time he logs on to his computer." These factors made it even more difficult to evaluate the e-mail policy under the traditional solicitation and distribution analysis.
The ALJ concluded that based on "all of the above," the employer's prohibition on using the e-mail system to communicate about non-business matters, including union-related matters, was overly broad and interfered with the right of employees to exercise their right to organize under the NLRA. In short, under the reasoning of this ALJ, even a non-discriminatory prohibition on non-business use of e-mail is unlawful.
Employers will be anxiously awaiting the decisions of the Board in these two cases. If the Board adopts the result in Register Guard, employer e-mail policies prohibiting non-business use will continue to be valid, provided the employer enforces the policy in a non-discriminatory fashion. On the other hand, if the Board endorses the far more sweeping reasoning applied by the ALJ in Prudential Insurance, employers may be saddled with a legal obligation under the NLRA to permit their e-mail systems to be used for union organizing purposes. Whatever the result, the Board's ruling as to the permissible scope of employer e-mail policies will likely be tested through further appeals in the federal appeals courts, and ultimately the U.S. Supreme Court.