E-Newsletter

February 2008, Vol. 2

"Do We Have to Let Employees Use Our E-Mail System for Union Organizing or Other Union-Related Activities?"

Timothy C. Kamin, Esq.
tck@kclegal.com

A recent decision by the National Labor Relations Board ("Board") affects all employers, union and non-union, that have policies which prohibit the use of company e-mail for non-business purposes. Often, these policies are not enforced. In the past, unlawful discrimination has been found where employees are permitted to use company equipment for non-business purposes but are disciplined for using company equipment for union-related business. This new decision applies only to the use of employer-owned equipment, such as computers and an employer's communication systems (e-mail), telephones, bulletin boards, etc., and not to verbal or written communications that do not involve company equipment.

In Guard Publishing Co., the employer had a rule that "communication 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." The evidence showed that the employer allowed the use of e-mail for personal messages, such as jokes, birth announcements, party invitations and sports ticket offers, but had not allowed e-mail solicitations for outside organizations other than the employer's charitable campaign for the United Way.

An employee used the company e-mail system to send three messages to coworkers regarding union business, including a request that employees wear green clothing as a show of support for the union's position in negotiations with the employer and a separate e-mail that sought to clarify the facts about a union rally that had occurred the day before. The employer issued two written warnings to the employee for violation of the e-mail usage policy. The employee filed charges with the Board, alleging discriminatory enforcement of the policy to target union activity, while allowing other non-business uses. The Board found one of the written warnings to be lawful, but found the other to be unlawfully discriminatory.

The Board held that an employer has a basic property right to regulate employee use of its property and equipment. Further, a computer and e-mail system is the employer's property, purchased for use in operating the business, like bulletin boards, copy machines, telephones and televisions. Therefore, an employer has a basic property right to regulate the use of e-mail and computers, provided it does so in a manner that is not unlawfully discriminatory under the National Labor Relations Act ("NLRA").

Next, the Board redefined the boundaries of discriminatory regulation. The Board held that the NLRA allows an employer to draw non-discriminatory distinctions in deciding what types of communications to allow, such as charitable vs. non-charitable solicitations, personal vs. organizational invitations, or personal solicitations (such as selling one's own car) vs. commercial solicitations (such as Avon sales). The Board stated that the mere fact that union activity falls on the prohibited side of such distinctions does not render the distinctions unlawful because they do not single out union activity, but rather prohibit a broad class of activities of which union activity is just one part.

Therefore, the Board held that the employer lawfully disciplined the employee for soliciting coworkers to wear green on behalf of the union because the employer's rule and practice had prohibited all non-personal and non-charitable solicitations, not just union solicitations. However, the Board held that the employer violated the law by disciplining the employee for sending an e-mail that simply communicated facts about what happened at a union rally. That e-mail was not a solicitation. The only thing that separated that e-mail from other informative e-mails the employer had allowed was that it related to union activity. Therefore, the discipline singled out union-related messages while permitting all others, which violates the NLRA.

This decision advises employers to carefully draft and enforce policies for use of company e-mail and other company property. If an employer seeks to prohibit use of company e-mail to solicit on behalf of a union, it must also prohibit non-union solicitations of a similar nature.


For more information about this decision and other union related issues and/or employment policies, contact educational services at (414)423-1330.