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National Labor Relations Board Allows E-Mail Policy Prohibiting Non-Job Related Solicitations

In a long-anticipated decision, the National Labor Relations Board, by a three to two margin, recently found an e-mail policy which prohibited non-job-related solicitations to be lawful under the National Labor Relations Act (the Act). In so doing, the Board found that an employer has a basic property right to regulate and restrict employee use of its e-mail system. The Board also found, though, that the enforcement of such a policy may be discriminatory in certain instances.


The Respondent was a newspaper publisher, The Registered Guard, whose e-mail policy was challenged by a union that represented a unit of about 150 of its employees. In 1996, the Respondent implemented the Communications System Policy (CSP) at issue in this case. The CSP stated in relevant part "Company Communications System and the equipment used to operate the Communications System are owned and provided by the Company to assist in conducting the business of The Registered Guard . Communications Systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations or other non-job-related solicitation."


At issue in the instant dispute were three e-mails sent by Suzi Prozanski, a unit employee and the union president. The first e-mail was sent on May 4, 2000. Prozanski told her employer that she wanted to send an e-mail to employees to "set the record straight" about the circumstances surrounding a union rally. Baker informed her that she should discuss the matter with Human Resources, but as Human Resources never responded to Prozanski’s request, she went ahead and sent an e-mail from the company work station. On the next day, she received a written warning for violating the CSP.


Prozanski received a second written warning on August 22, 2000 for two e-mails she sent on August 14 and August 18, respectively. The August 14 e-mail asked employees to wear green to support the union’s position in negotiations. The August 18 e-mail asked employees to participate in the union’s entry in an upcoming town parade.


The General Counsel challenged the CSP. The Board first considered the maintenance of the CSP and found that the employer had a right to maintain the policy. It noted that the employer possessed basic property rights to regulate and restrict employees on company property. Although this particular issue was novel, the Board cited numerous cases in which it had addressed whether employees have the right to use other types of employer-owned property, such as bulletin boards, telephones, and televisions.


Turning to the question of whether the Respondent discriminatorily enforced its e-mail policy, the Board found that its previous approach, which examined whether the employer allowed its employees to use its communication system for non-work related purposes, "fail[ed] to adequately examine whether the employer’s conduct discriminated against Section 7 [of the Act] activities." Instead, the Board adopted the analysis set forth by the Seventh Circuit which looked to whether the employer treated all communications "of a similar character" the same.


Applying this standard, the Board distinguished between Prozanski’s August e-mails and her May e-mail. The August e-mails simply encouraged employees to participate in union activities. Prozanski’s May 4 e-mail, however, was not a solicitation. It simply clarified facts surrounding the union rally of the previous day. As the employer permitted a variety of non-worked-related e-mails other than solicitations, the Board found that the Registered Guard’s enforcement of the CSP with respect to that e-mail violated the Act.


This case represents a huge victory for employers. Employees should feel free to maintain a communication system policy such as the one at issue in this case. Employers should be careful, however, not to discriminatorily enforce that policy and should take care to note the distinction that the Board drew between the May 2000 e-mail and the August 2000 e-mail. The Guard Publishing Co. d/b/a/ The Registered-Guard and Eugene Newspaper Guild, CWA Local 37194 (December 16, 2007).

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.



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