In a highly controversial decision, the National Labor Relations Board (the "Board") ruled 3 to 2 in favor of employers in its resolution of two important issues relating to the ability of employees to use email for union solicitation purposes. In Guard Publishing Co., 351 N.L.R.B. No. 70 (Dec. 16, 2007), the Board held that:

• An employer does not violate Section 7 of the National Labor Relations Act ("NLRA") by maintaining a policy that prohibits employees from using company email for "all non-job-related solicitations"; and
• An employer does not violate section 8(a)(1) of the NLRA by applying its non-solicitation policy to prohibit union-related solicitations while permitting employees to send personal email messages that do not involve solicitations to support any group or organization.

Factual Backdrop: Guard Publishing Company is a newspaper publisher employing 150 union-represented employees. In 1996, the Company implemented the Communications Systems Policy ("CSP"), which prohibited employees from using its communications systems to "solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."

Between May and August 2000, a union employee who also served as union president received two written warnings for sending out union-related solicitations via email to unit employees on Company-provided email accounts. One email requested employees to wear green to show support for the union's negotiation position, and the other sought their participation in a union parade. In addition, the Company gave the employee a third warning for sending out an email to co-workers explaining the union's position in regard to a recently held rally.

Validity of Email No-Solicitation Policies: The General Counsel argued that the Company violated Section 8(a)(1) by maintaining an overly broad email no-solicitation policy which interfered with the employees' ability to communicate with one another regarding union matters. Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their Section 7 rights, which include the right to self-organize, form, join, or assist labor organizations, and engage in collective bargaining or other concerted activities for mutual aid or protection.

The Board disagreed with the General Counsel that the Company violated Section 8(a)(1) by maintaining the CSP. As the Board explained, "An employer has a 'basic property right' to 'regulate and restrict employee use of company property.'" The email system was the property of the Company; it had purchased the email system for use in operating its business.

The issue of whether employees have a specific right under the NLRA to use the Company's email system for Section 7 activity was one of first impression for the Board. However, in earlier decisions involving employee efforts to solicit union support through the use of an employer's bulletin boards, telephones and televisions, the Board has consistently held that employees have "no statutory right to use an employer's equipment or media," so long as the restrictions are non-discriminatory. Relying on these decisions, the Board rejected the General Counsel's position that email communications were akin to face-to-face communications employees had the right to engage in even if it resulted in some "dislocation" of employer property rights, which the Supreme Court long ago determined in Republic Aviation v. NLRB, 324 U.S. 793 (1945). Rather, the Board held that employees' use of the employer's email system for union solicitation purposes was akin to their use of more traditional employer equipment such as bulletin boards, telephones and televisions, which the employer could lawfully prohibit.

While recognizing that the advent of email had a substantial impact on communication in the workplace, the Board found it neither eliminated face-to-face communication among employees nor reduced it to an insignificant level. Consequently, there was no basis to stray from the settled principle that, absent discrimination, employees have no statutory right to use the Company's equipment or media for Section 7 communications. Thus, the Board explained that the Company could lawfully bar employees from using its email system for non-work related purposes, unless it acted in a manner that discriminated against Section 7 activity. The Board found that the CSP did not discriminate against Section 7 activity on its face, and the Company did not, therefore, violate Section 8(a)(1) by maintaining the CSP.

Board's Modification of Standard for What Constitutes Discriminatory Enforcement of No-Solicitation Rules: The General Counsel further alleged that the Company violated Section 8(a)(1) by enforcing the CSP in a discriminatory manner and violated Section 8(a)(3) by issuing warnings to the employee-union president for violating the CSP. As stated above, an employer engages in an unfair labor practice under Section 8(a)(1) if it interferes with employees in the exercise of their Section 7 rights. Under Section 8(a)(3), an employer commits an unfair labor practice if it discriminates with regard to hire, tenure, or any term or condition of employment to encourage or discourage membership in a labor organization.

The General Counsel presented evidence that during the relevant time period, the Company was aware that its employees regularly used email to send and receive personal messages, such as baby announcements, party invitations, offers of sports tickets and requests for services such as dog walking. Employees were not reprimanded for using Company-provided email in those manners. However, there was no evidence that any employees, before the May and August 2000 incidents at issue, had used Company-provided email "to solicit support for or participation in any outside cause or organization" (except for United Way, for which the Company periodically conducted charitable campaigns).

In a 2001 decision similar to the one at hand, the Board had held that where "an employer allows employees to use its communications equipment for non-work related purposes, it may not validly prohibit employee use of communications equipment for Section 7 purposes." However, the Board decided here to promulgate a different standard adopted by the Seventh Circuit, which the Board felt "better reflects the principle that discrimination means the unequal treatment of equals." Under the Seventh Circuit analysis, "unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status."

The Board held that an employer can promulgate a rule that distinguishes charitable from non-charitable solicitations, personal solicitations from commercial ones or between solicitations and mere talk. The fact that union solicitations may fall on the prohibited side of the line does not make the rule unlawful as long as the employer does not draw a line between permitted and prohibited activities on Section 7 grounds. In this regard, the Board explained, "[A]n employer clearly would violate the Act 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." In other words, employers may draft email policies to exclude categories of solicitations and/or communications themselves, which encompass union solicitations or communications, as long as they are not singled out on Section 7 grounds.

Applying the newly adopted standard, the Board determined that the Company had not discriminated on the basis of Section 7 status with regard to the employee-president's two emails which solicited employees to take action to support the union. Based on the evidence presented, the Company had tolerated personal emails and messages concerning baby announcements, social gatherings, and offers of sporting events and the like, but there was no evidence that the Company ever permitted employees to use email to solicit other employees to support any group or organization. However, because the email which explained the controversy surrounding the union rally was simply a communication rather than a solicitation, and since the Company allowed other personal communications via email, the Board concluded that the Company's discipline of the employee-union president for that email was discriminatory on the basis of Section 7.

What Does This Mean for Employers?

This decision is of great significance to employers. Since the Board has definitively recognized that an email communication system is the property of an employer, pursuant to Guard Publishing, employers now have a fair amount of leeway in drafting electronic communication policies to suit their business needs. Employers should consider the scope of such policies: whether, for example, the company would be best suited by restricting all non-business communications, all non-business solicitations, or only non-charitable solicitations. Since it is equally important for employers to engage in uniform enforcement of any such restrictive communication policies, these policies should be drafted with an eye toward what is practicable for a particular operation.

However, because of the strong possibility of appeal of this controversial 3-2 Board decision, employers should stay attuned to future developments in the law.

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