NLRB rules e-mail system is employer’s property

By G. Phillip Shuler

In a ruling favorable to employers, the National Labor Relations Board (NLRB) continued its trend of 3-2 decisions favorable to employers in ruling that an employer can prohibit workers from using its e-mail system for union business.

Prior to this decision, employers generally believed that unless the employer prohibited all use of company e-mail for nonwork related purposes and enforced the prohibition strictly, the employer would most likely have to allow its use for employees' union and concerted activities on workplace issues under Section 7 of the National Labor Relations Act. This common belief has been negated by the recent decision in Register Guard Publishing Co., where the Republican majority announced that an employer can prohibit workers from using its e-mail system for union business.

The ruling involved e-mail messages sent in 2000 by a union organizer who used the company's e-mail system 1) to urge employees marching in a town parade to wear green in support of the union in contract negotiations; 2) to correct an earlier e-mail from management; and 3) to ask employees to participate in the Union's entry in an upcoming town parade.

Two of the e-mails were sent from a computer in the union's office, both of which were sent after the employee had received a written warning for the first message. The Register Guard's employees routinely used the company's e-mail system for work related matters and for personal messages such as baby announcements, party invitations, requests for sports tickets or services such as dog-walking. However, there was no evidence that employees used the e-mail system to solicit support for any outside cause or organization other than the United Way.

The Register Guard policy prohibited using company communications system for all “non-job related solicitations.” Noting that the issue was an issue of first impression, the board concluded that it had consistently held there is “no statutory right to use an employer's equipment or media” as long as the restrictions are nondiscriminatory. The board's prior rulings concerning use of employer property involved such things as bulletin boards, public address systems, telephones and televisions.

The board refused to apply a balancing test by balancing employees' Section 7 rights against the employer's interest in maintaining discipline and the union's argument that a broad ban should be presumptively unlawful. Under its nondiscrimination test, the board found e-mail (2.), supra, to be discriminatory because it was of similar character to other personal solicitations allowed by Register Guard. However, the board found that Register Guard's enforcement of its policy was lawful as to the “solicitations” in items (1.) and (3.), supra.

At the heart of the case is how to characterize employee use of emailIs it the same as picking up a workplace phone or posting a notice on a company bulletin board? Or is being online and sending and receiving e-mail more like being on company property and talking with others in a physical gathering place? In other words, was this case a “use of company property” matter or a question of the limits of employee communication in the workplace?

The NLRB majority rejected the notion of cyberspace as a type of employer premises and e-mail as a new kind of chatter. E-mail had not transformed work at the newspaper to the point that other forms of communication were “rendered useless,” the majority wrote, which would have required them to mandate employee use of the workplace e-mail system for Section 7 purposes.

In applying its nondiscrimination standard, the board specified that two types of e-mail policies would be unlawful under its new test:

• Allowing employees to use e-mail to solicit for one union but not another
• Permitting solicitation by anti-union workers but not pro-union workers.

On the other hand, the board ruled that it was acceptable to draw a line between charitable (i.e. Red Cross, United Way) and non-charitable solicitations (the union).