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The employer's mistakes in Register-Guard were that (a) it did not enforce its policy against other non-business solicitations, even though the policy prohibited all "non-job-related solicitations;" and (b) it enforced the policy only when the solicitation in question was on behalf of a union.

Whether the Obama Board will continue to allow employers to ban union communications on their e-mail systems remains uncertain. Regardless, employers should consider the following:

• Employers can impose broad restrictions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with communications that might otherwise be protected by Section 7 of the National Labor Relations Act as long as the policy on its face does not discriminate against union activity.

• Employers can draft the policy in a manner that will capture union-related activities in addition to union solicitation.

• Employers should confirm that legitimate, non-discriminatory justifications exist for their line drawing, such as protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, preserving server space, and avoiding company liability for employees' inappropriate e-mail.

• Before disciplining an employee for violating the policy by engaging in union-related activity, confirm that the communication, in fact, violated the policy. Moreover, check that other employees who have engaged in similar conduct also have been disciplined.

• Implement procedures to ensure that the policy is enforced in a non-discriminatory manner.

This entry was authored by Laurent R. G. Badoux and Philip L. Gordon.

For additional analysis of this development, see Littler’s ASAP “The D.C. Circuit Reminds Employers of the Perils of Selectively Enforcing Their Solicitation and E-Mail Policies Against Union-Related Activities” by Laurent R.G. Badoux, Jennifer L. Mora and Kathryn E. Siegel.
 

Under prior precedent, the Board would find “discrimination” where, for example, an employer disciplined an employee for using corporate resources to send union-related e-mail but permitted any other e-mail communications unrelated to work, such as invitations to bridal showers, recruiting for fantasy football leagues, or solicitations for charitable contributions.  Because almost every employer, upon close scrutiny, allows some e-mail unrelated to work — even if the “official” policy prohibits e-mail unrelated to work – this definition of “discrimination” effectively prevented employers from enforcing restrictions on union-related communications using corporate e-mail systems.

The Board overruled this prior precedent, explaining that “unlawful discrimination consists of disparate treatment of activities or communication of a similar character because of their union or other Section 7-protected status.”  The Board provided several examples to illustrate this much narrower definition of “discrimination”:  “an employer clearly would violate the [NLRA] if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.”  By contract, the Board explained, any of the following policies would be permissible (i.e., non-discriminatory), even if the policy incidentally interfered with union communications:

Ø      A policy permitting only business-related communications

Ø      A policy barring all solicitations

Ø      A policy permitting only charitable solicitations

Ø      A policy permitting solicitations only of a personal nature

The one remaining catch is that an employer’s motivation for line-drawing can not be anti-union animus.  In other words, an employer can not promulgate a policy that permits only charitable solicitations as a subterfuge for suppressing union-related communications over the corporate e-mail system.

What does Guard Publishing mean, in practical terms, for employers?

First, existing corporate e-mail policies most likely do not need to be revised (except in the unlikely event that the policy expressly prohibits union-related communications while permitting communications related to other membership organizations).  Employers should review their existing polices to ensure that they comply with the Board’s decision in Guard Publishing.

Second, employers who revise their e-mail policy, or prepare one for the first time, can impose broad prohibitions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with Section 7 communications.

Third, when promulgating a new or revised e-mail policy, employers should have legitimate, non-discriminatory justification for their line drawing, such as preserving server space, protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, and avoiding company liability for employees’ inappropriate e-mail.

Fourth, before disciplining an employee for using corporate e-mail to communicate about union-related activities, an employer should confirm that the communication, in fact, violated existing policy.  In Guard Publishing, the NLRB found that the employer had violated the NLRA by disciplining an employee who sent an e-mail which did relate to union matters but did not solicit employees to join the union and, therefore, did not violate the newspaper’s policy barring “non-job-related solicitations.”

Fifth, employers can discipline employees for using corporate e-mail to send union-related communications in violation of the employer's e-mail policy as long as employees engaged in similar conduct also are disciplined.  In other words, an employee can be disciplined for soliciting union participation only if employees who solicit participation in other membership organizations also are, or will be, disciplined.  Employers should implement procedures to ensure that they enforce their e-mail policy in a non-discriminatory manner.

The Board’s decision may be appealed. We will continue to comment on developments in this important case.  (For more in-depth analysis of this decision, see Littler ASAP "NLRB Rules That Employers May Implement a Corporate E-mail Policy That Has the Effect of Barring Union-Related Communications" by Philip Gordon and Michael Mankes.)