NLRB Rules That Employers May Restrict Employees’ Union Solicitation on Company E-Mail
In a long-awaited decision, the National Labor Relations Board (the “NLRB”) has 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. The Guard Publishing Co., 351 N.L.R.B. No. 70 (December 16, 2007).
The National Labor Relations Act (the “NLRA”) protects the right of employees to seek to organize a labor union among their co-workers. Nonetheless, the NLRB has long permitted employers to prohibit employee use of company equipment, such as telephones and bulletin boards, in soliciting support for a union. Prohibitions on the use of employer equipment for union solicitation were considered lawful provided that the employer uniformly prohibited all personal use of the company telephones, bulletin boards and the like. For example, if the employer prohibited employee use of its business equipment for union solicitation, but permitted solicitations for any other non-business purposes, such as approaching co-workers to sell school candy, then the discriminatory prohibition on union solicitation constituted an unfair labor practice under the NLRA.
In the Guard Publishing decision the NLRB specifically ruled 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 NLRA. The NLRB made clear that an employer may prohibit all non-business use of company e-mail systems.
More significantly, the NLRB also addressed allegations that the employer had applied its rule against non-work-related e-mail use in a discriminatory manner, when it prohibited union-related solicitations while permitting other personal solicitation among employees. The NLRB modified its prior approach to discriminatory enforcement cases and reversed several long-standing precedents. It ruled that a determination of whether an employer unlawfully discriminates in permitting employee use of company communications equipment requires an analysis of whether there was disparate treatment of activities or communications of an otherwise similar character. That is, the NLRB ruled that it is lawful for an employer to permit purely personal solicitations (e.g., an employee’s sale of an automobile) using company communications facilities while prohibiting solicitations for outside organizations and business enterprises such as housewares and cosmetics sales companies and labor unions. On the other hand, the employer may not permit solicitations by anti-union employees on company e-mail or telephones while prohibiting pro-union workers like access, nor may the employer permit solicitations for one union while disallowing such solicitations for another union.
The Guard Publishing decision was issued by a narrow 3-2 majority of the NLRB, who divided along Republican-Democratic party lines. The two dissenting members would have broadly ruled 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. In other words, the dissenters urged that any employer prohibition on such communications and solicitation, even if applied in a non-discriminatory manner, should be deemed a violation of the NLRA absent some special circumstances (such as unusual capacity limits of the system or extraordinary security needs). The two Democratic NLRB members also dissented “in the strongest possible terms” from the majority’s overruling of the NLRB’s long-settled standards for evaluating whether an employer is guilty of discrimination in permitting access to company communications facilities by employees. The dissenters would not permit an employer to allow workers to use company equipment for personal non-work-related communications while prohibiting solicitations for activities that are protected by the NLRA, most particularly union organizing efforts.
The actual result in the Guard Publishing case illustrates the difficult practical and legal issues that can arise from any restrictions on union solicitation. The unfair labor practice complaint alleged that a company employee who was the president of The Newspaper Guild, which represented the company’s employees, had received disciplinary warnings for sending three e-mails to the union-represented workers at their company e-mail addresses. In one e-mail, the president urged her co-workers to march in the union’s contingent in a town parade and, on a separate occasion, she urged them to wear green to support the union’s bargaining position in on-going negotiations with the employer. The third e-mail explained to the employees the union’s version of events at an earlier union rally, but did not call for the employees to take any action. The Administrative Law Judge hearing the complaint ruled that all three warnings were unfair labor practices because the employer’s non-solicitation rule was applied discriminatorily to prohibit union solicitations while allowing a number of other non-work-related e-mails.
In reversing the most of the Judge’s determinations, the NLRB pointed out that the first two e-mails were “solicitations”; they asked the worker to whom the message was directed to take action requested by the union: wear a symbolic color in one case and join a marching contingent in a parade in the other. Because those solicitations violated the employer’s rule prohibiting use of the e-mail system for solicitation on behalf of any outside organizations, and that rule was deemed lawful by the NLRB, these two disciplinary warnings were not unfair labor practices. The employee’s third message, on the other hand, did not call for any action by the recipient and therefore was not considered by the NLRB to be a “solicitation” prohibited by the employer’s policy. The employer’s e-mail use policy and practices allowed a variety of non-work-related messages that were not solicitations; consequently, the employer could not lawfully prohibit the union-related message that was not solicitation but was limited to explaining the union’s version of the facts of the earlier rally. The disciplinary warning related to that message therefore was an unfair labor practice. As these facts reveal, the line between “union solicitation” that may be prohibited pursuant to a valid no-solicitation rule, and mere “union talk” that generally may not be restricted, often is difficult to draw.
The practical impact of the Guard Publishing decision for management is both significant and complex. All employers should review their policies on non-solicitation and use of company equipment in light of the following considerations.
First, the NLRB now makes clear that 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 communicate about labor unions (putting aside communications which amount to “solicitation” for or against a union, discussed below). Mere discussions of union activity may not be discriminatorily prohibited when other personal “talk” is allowed.
Third, 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 — are subject to different considerations. The employer may permit employees to engage in personal solicitations using the employer’s telephone or e-mail systems (e.g., the sale of a private automobile) while, at the same time, prohibiting employee solicitation for outside organizations. The telephone and e-mail non-solicitation policy must be applied on a uniform basis to all outside organizations. Tolerating solicitation to support a political organization but then enforcing the policy against solicitations to support a union will violate the NLRA.
Fourth, the Guard Publishing decision highlights an important distinction between the permissible scope of the traditional no-solicitation rule, typically applicable to face-to-face communications, and the greater latitude that an employer now enjoys to limit solicitations that make use of company communications systems. Under long-established NLRB principles, in-person solicitation between employees may be prohibited only during the working time of the employees involved in the exchange. Put another way, face-to-face solicitation (including solicitations involving 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 contrast, Guard Publishing makes clear that solicitation for outside organizations (including unions) using company telephones or e-mail facilities may be prohibited at all times, not only while the employee is on working time.
In view of the intricacies of no-solicitation rules generally, and the nuanced requirements of the new rules regarding company communications equipment, all employers should review their existing policies on solicitation and the use of company facilities and should obtain legal advice to ensure that those policies comply with pre-existing law and, as importantly, that the policies take maximum advantage of the greater latitude accorded to employers by the Guard Publishing decision.