The D.C. Circuit Leaves Undisturbed the Ability of Employers to Ban Union Communications Using Corporate E-Mail

Posted on July 16, 2009 by Privacy and Data Protection Practice Group

Many had anticipated a dramatic rejection of Register-Guard, the National Labor Relations Board's landmark December 2007 decision, which held that employees could not use their employer's e-mail system as a matter of right to engage in union-related activities or union solicitation (see our previous blog entry). Instead, on July 7, 2009, the D.C. Circuit let that decision stand, effectively holding that the newspaper in that case did not violate federal law by issuing a policy banning all solicitations, including union solicitations, from its corporate e-mail system.

The court nonetheless concluded that the newspaper had engaged in unfair labor practices in the way it applied the policy. The court found that one of the e-mails that resulted in discipline of the employee—who was also the union president—was union-related, but was not a solicitation. Consequently, the union president did not violate the newspaper’s electronic resources policy by sending it. The other two e-mails upon which the newspaper had relied to discipline the employee were solicitations that violated the company’s policy. However, the newspaper's lax enforcement of the policy vis-à-vis non-union-related messages and its after-the-fact justification for applying the policy to the employee's messages demonstrated unlawful discrimination against union activities. 

 

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.
 
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Enforcing a Ban on Political Activity Over Your Corporate Network Risks Violating the NLRA

Posted on August 18, 2008 by Philip Gordon

Many employers include in their electronic resources policy a blanket prohibition on “engaging in any political activity.” A recent Guideline Memorandum issued by the NLRB’s General Counsel creates a minefield of potential unfair labor practices for employers who enforce this commonplace ban, especially as the 2008 presidential campaign heads towards its climax.

According to the GC’s Guideline, employees’ political advocacy can, in some circumstances, constitute “concerted activity” protected by the NLRA. The test is two-fold: First, is there “a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.” Put simply, is the political advocacy related to the terms or conditions of employment. Second, has the employee engaged in this protected political advocacy without violating "restrictions imposed by lawful and neutrally applied work rules." In other words, employers can discipline employees who engage in protected political advocacy as long as the rule used to justify the discipline is legal and is applied in a non-discriminatory manner. There’s the rub for employers.

 

Last December, the NLRB ruled that employers can implement an e-mail policy whose provisions incidentally prohibit union-related activity. An employer can, for example, promulgate a policy that bans all non-business use of its e-mail system or that bans all solicitations for membership organizations. While such policies effectively ban use of the corporate e-mail system for union-related activities, that result is only incidental to the broader ban directed at both non-union and union activities. Thus, an e-mail policy that bans all political activity using the corporate e-mail system is lawful, even though some of the banned activity may now, according to the GC’s Guideline, be protected concerted activity.

 

The challenge for employers is ensuring that this lawful policy is “neutrally applied.” During the presidential debate season, an employer can expect to see e-mail cheering and lambasting the candidates, encouraging co-workers to register for a particular party, and attacking or advocating planks in party platforms. If such e-mail traffic goes unpunished even though it violates the company’s ban on political activity over the corporate e-mail network, the trap may be laid for a successful unfair labor practice charge when months later employees are punished for exchanging e-mail about joining in a union-organized protest over a new work-related law advocated by the new President — whoever that might be.

 

For further analysis on the GC's Guidelines, please see Littler ASAP: Can a Bumper Sticker Get You Bumped? NLRB's General Counsel Issues Guidelines on Political Advocacy by Frank W. Buck and Richard L. Sloane.

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NLRB Broadens Employers' Ability To Ban Union Communications Using Corporate E-Mail

Posted on December 26, 2007 by Philip Gordon

In a highly anticipated decision, the National Labor Relations Board has emphatically landed on the side of employers whose policies bar employees from using corporate e-mail resources for union activities.

In The Guard Publishing Co. d/b/a The Register Guard, the Board, in a 3-2 decision, held that “employees have no statutory right to use an employer’s equipment or media for Section 7 communications.”  Section 7 of the National Labor Relations Act  encompasses communications about virtually all union activities by employees, including solicitation, organizing, grievances, picketing, strikes, and discussions about the terms and conditions of employment.  In light of this ruling, an employer may, in the words of the Board, “lawfully bar employees’ nonwork-related use of its e-mail systems,” including use for union activities.

There is a caveat, but as defined by the Board, the caveat is a narrow one:  Employers can not act “in a manner that discriminates against Section 7 activity.” (emphasis supplied).  Significantly, the Guard Publishing decision substantially narrows the prior definition of “discrimination” for purposes of analyzing whether an e-mail policy (or any other policy restricting Section 7 activities) on its face, or as enforced by the employer, interferes with Section 7 rights.

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.)
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NLRB Puts a Speed Bump in the Path of Unionized Employers Trying to Keep Their Electronic Resources Policy in Pace with Technological Change

Posted on October 2, 2007 by Dale L. Deitchler

Employers, for the most part, are the kings of the road when it comes to regulating the use of their electronic resources.  However, several recent cases suggest that the National Labor Relations Board (NLRB or “the Board”) may soon be playing the role of traffic cop on the employer-provided segment of the information highway.  In Media General Operation v. NLRB, the Fourth Circuit affirmed the NLRB’s finding of an unfair labor practice against a newspaper which had instructed union members to stop using the company’s e-mail system to distribute union-related messages.  The Fourth Circuit relied upon the well established rule that an employer who permits any non-union use of its e-mail system — even if that non-union use violates a business-use only policy — cannot discriminate against union-related communications.  Around the same time, the Board heard oral arguments on the question whether employers violate the National Labor Relations Act (NLRA) by enforcing a prohibition against all non-business use — whether union or non-union — of their e-mail system.  See Guard Publishing Co. d/b/a The Register-Guard.

On September 10, 2007, the Board highlighted another NLRA-based restriction on the ability of employer’s to set rules for employee use of employer-provided electronic resources. The Board held that a union employer violated the NLRA by implementing a revised e-mail policy without first reaching agreement or impasse with the union.  This ruling will be a speed bump for unionized employers struggling to keep current their policies regulating the use in the workplace of rapidly evolving communications technology and of an ever expanding menu of personal “gadgets” (iPods, Blackberries, camera phones, etc.). 

The recent decision involved California Newspaper Partnership d/b/a ANG Newspapers (ANG), a publisher of five newspapers in the San Francisco Bay Area.  The newspaper company faced a grievance from the Media Workers’ Union for disciplining a reporter who had sent an e-mail to several other union members/employees about union matters in violation of ANG’s policy prohibiting all employees from sending such “broadcast e-mails” on any subject matter.  The union attacked the discipline by arguing that the policy which the reporter allegedly had violated (the “ challenged policy”) was unlawful.  To support that position, the union contended that the challenged policy was a revision of a prior policy and that the newspaper had commenced bargaining over the challenged policy but implemented it unilaterally before reaching agreement or impasse with the union.

ANG did not dispute that the e-mail policy was a mandatory subject of collective bargaining or that it had not completed the bargaining process.  ANG sought to escape these concessions by arguing that the union had waived its right to bargain over the e-mail policy because the collective bargaining agreement conferred on ANG the exclusive right to establish, amend and discontinue rules of conduct and operating policies (the “management-rights clause”).  Rejecting this argument, the NLRB adopted the position of the Administrative Law Judge (ALJ) that the management-rights clause was too vague to act as a waiver of the union’s right to bargain over rules, like ANG’s challenged e-mail policy, that are backed up by discipline.  The NLRB also adopted the ALJ’s position that the collective bargaining agreement’s “zipper clause” — stating that bargaining was concluded with respect to “all proper subjects of bargaining,” even if that subject matter had not actually been raised during negotiations — also was insufficiently specific to constitute a waiver of the union’s bargaining rights.

Ironically, the Union’s defeat of the “challenged policy” was a Pyrrhic victory for the union. The prohibition on broadcast e-mail, which was the basis of the grievance in the first place, was identical in both the challenged policy and its predecessor.  Once the challenged policy was rescinded, its predecessor policy became the controlling policy, including the identical prohibition on broadcast e-mail.  Nonetheless, the lesson for union employers remains the same: an electronic resources policy can not be materially updated without first engaging in collective bargaining over the proposed changes.

This entry was co-authored by Philip L. Gordon.
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