The NLRB recently resolved a long-standing issue regarding whether an employer could prohibit its employees from utilizing the employer’s email for reasons related to union organization. The outcome: clear victory for employers. At least for now.

In The Guard Publishing Company, 351 NLRB No. 70 (December 16, 2007), the Board was faced with consideration of an employer’s communications policy which provided as follows:

Company communications systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of [the Company]. Communications 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.

While the policy did not prohibit all non work-related uses, and employees had regularly used the system for non work-related emails, there was no evidence that the email system was used for solicitation of other employees.

The case arose when the company disciplined the union president who used company email to solicit union employees for support during contract negotiations.

Initially, the Board held that “employees have no statutory right to use an employer’s equipment or media for Section 7 communications.”  In doing so, the Board recognized the import of employers’ property rights and expressly rejected an assertion that email usage had become the primary form of communication at work by employees and, therefore, employees should be afforded greater rights in its usage.

Thus, under the current interpretation, employers have the unequivocal right to ban all personal use of company email, including for union organization purposes.  However, the practical realities often preclude such a policy.

Previous decisions from the Board would suggest that “discrimination” was present where an employee was disciplined for sending union related email, but where other employees were not disciplined for other email communications unrelated to work.  Luckily for employers, the Board addressed this issue head on.

Over an aggressive dissent, the Board found an employer need not prohibit all “non-business” email. Rather, the Board concluded that an employer may permit limited, non-business email, while still restricting solicitations. According to the Board, such actions do not constitute “disparate treatment.”

The Board concluded that it would review “communications of a similar character” to ascertain whether a discriminatory animus existed. The Board opined that “an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.”

Clearly this decision is favorable to employers. The issue is, however, far from over. Labor leaders have already begun a campaign against the decision and look for the issue to arise again in the future, particularly if the make-up of the Board changes with the upcoming election. Additionally, the decision may get reversed or altered on appeal.

At a minimum, all employers, irrespective of whether they are unionized, should review their email usage policies and procedures in light of this decision and, as appropriate, revise those policies to insure compliance with the current standard. Additionally, all employees must be trained on email usage and, as applicable, instructed that “commercial” solicitations of any nature are prohibited. And management must be prepared to enforce that policy.

Rhoads & Sinon regularly drafts and reviews policies and procedures, and provides training on email usage and labor-management relations. For more information, contact Robert J. Tribeck, Esquire at 717.237.6701 or rtribeck@rhoads-sinon.com.