LawyersUSA

A ruling by the National Labor Relations Board late last year makes clear that employers can ban union solicitations on their e-mail systems.

An employer "may lawfully bar employees' non-work-related use of its e-mail system, unless the [company] acts in a manner that discriminates" against union organizing and collective bargaining rights under the National Labor Relations Act, the NLRB ruled in a 3-2 decision.

Management attorneys say that the ruling isn't surprising because employers generally maintain control over their company e-mail systems.

"The typical rule that has been followed in most jurisdictions is that the employer's e-mail system belongs to the employer," said Stephen M. Foxman, an attorney in the business division of Eckert Seamans in Philadelphia.

He said that the decision essentially applied this general rule to "the specific area of labor relations."

But union advocates complain that the decision makes employers' property rights paramount, to the detriment of employees' right to communicate about union-related matters.

"The labor board gave employers a road map to write an e-mail policy that bans union solicitations and allows almost everything else," said Nancy Schiffer, associate general counsel of the AFL-CIO.

She said the decision lacks awareness of how employees communicate now.

E-mail "is like the water cooler," said Schiffer. "To pretend it's like using another piece of employer equipment is pre-e-mail times."

Newspaper union

In the case underlying the ruling, the president of the Newspaper Guild union at The Register-Guard in Eugene, Ore. sent e-mails to other employees, inviting them to attend a union rally and asking them to wear green in support of the union's position in negotiations. The union represents about 150 of the newspaper's employees.

The newspaper's "communication systems policy" stated that the company e-mail system was "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 was aware that employees used e-mail for certain personal matters, such as party invitations and offers of sports tickets. The e-mail system was also used to campaign for the United Way, which the company supported.

In negotiations with the union, the newspaper suggested a contract term specifically stating that union business was banned from the electronic communication system.

The union filed a charge against the newspaper, claiming that its proposal violated the employees' right to organize under §7 of the National Labor Relations Act.

But the NLRB said "there is 'no statutory right … to use an employer's equipment or media,' as long as the restrictions are nondiscriminatory. …

"We recognize that e-mail has, of course, had a substantial impact on how people communicate, both at and away from the workplace.… [However,] it is clear that use of the [employer's] e-mail system has not eliminated face-to-face communication among the [company's] employees or reduced such communication to an insignificant level. Indeed, there is no contention in this case that the [company's] employees rarely or never see each other in person or that they communicate with each other solely by electronic means. …

"Thus … we find that use of e-mail has not changed the pattern of industrial life at the [company's] facility to the extent that [other] forms of workplace communication … have been rendered useless and that employee use of the [employer's] e-mail system for §7 purposes must therefore be mandated. Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer's equipment or media for §7 communications," the NLRB said.

Two members of the board issued a dissenting opinion, complaining that "[o]nly a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace. In 2007, one cannot reasonably contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper."

Reviewing policies

Given the ruling, employers need to review their company e-mail policies.

"Employers have to make their policies clear," said Foxman. "They have to evaluate what's permitted and what isn't."

An important focus should be whether the policy is discriminatory.

"Allowing some personal use doesn't mean it gives employees the right to engage in all solicitations," said Don Schroeder, a management attorney who practices with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.in Boston. "But if everything else goes on in terms of solicitation, they can't just ban union business."

The question is: "are the things you permit of the same character as a union solicitation?" said Brian Woolley, a management attorney with Lathrop & Gage in Kansas City, Mo.

He suggested a legitimate policy banning union solicitation might say, "You can use our e-mail system to communicate with coworkers about charitable activities, but not for any kind of commercial purposes," which would cover union solicitations.

A policy might also say, "You can't use our system to solicit for any outside organization," thereby including political parties, unions and other lobbying groups, such as the National Rifle Association, Woolley said.

Employees that want to communicate about union-related matters can still do so using their personal e-mail accounts, Foxman noted.

"The decision doesn't completely make a union incapable of communicating with its members," he said. "There is nothing wrong with getting people's private e-mail addresses because everyone today has private e-mail account."

Unions and employees can also communicate on interactive blogs, said Schroeder.

National Labor Relations Board. The Guard Publishing Co. d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, No. 36-CA-8743-12. Dec. 16, 2007. Lawyers USA No. 9939140. Click here to view the full text of this opinion.

Questions or comments can be directed to the writer at: reni.gertner@lawyersusaonline.com