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NLRB allows e-mail policy prohibiting non-job related solicitations

02.01.2008

In a long-anticipated 3-2 decision, the National Labor Relations Board (NLRB) recently found an e-mail policy prohibiting nonjob-related solicitations lawful under the National Labor Relations Act (NLRA). 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 that the enforcement of such a policy may be discriminatory in certain instances. 

Background 

The Register-Guard, a newspaper in Eugene, Oregon, had its e-mail policy challenged by a union representing about 150 of its employees. In 1996, the newspaper 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 Register-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.

The record revealed that employees used the communications system for personal matters but didn't engage in solicitation for any outside cause other than United Way.

At issue 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. It was sent to multiple union employees at their Register-Guard e-mail addresses and discussed circumstances surrounding an afternoon union rally held just three days earlier. Before the rally, managing editor Dave Baker sent an e-mail stating that employees should try to leave work early because the police had indicated that anarchists might attend the rally. 

The following day, Prozanski told Baker she wanted to send an e-mail to employees to "set the record straight" about the circumstances surrounding the rally. Baker told her she should discuss the matter with HR. She requested a meeting, but HR never responded. As a result, she went ahead and sent the e-mail from a company workstation. The next day, she received a written warning for violating the CSP. 

Prozanski received a second written warning on August 22 for two e-mails she sent on August 14 and 18. 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. Again Prozanski sent the e-mails to multiple union employees at their Register-Guard e-mail addresses. This time, however, she sent them from a computer in the union's office located off the newspaper's premises. 

Prozanski claimed that she was under the impression that the May 5 warning was for using the company's equipment to send messages and that there would be no problem if she sent e-mails from the union's office. Nevertheless, the company found that she had violated the CSP by using its communications system for nonjob-related solicitations. 

Shortly after, on or about October 25, the newspaper and the union began bargaining toward a new collective bargaining agreement. The newspaper presented the union with counterproposal 26, which proposed the following contract language: "The electronic communications systems are the property of the employer and are provided for business use only. They may not be used for union business." 

The union didn't respond because it believed the proposal illegally restricted its Section 7 rights under the NLRA. The union filed charges alleging The Register- Guard had violated Section 8(a)(5) of the Act by proposing and referring to withdrawn counterproposal 26. 

Board's decision 

The general counsel proposed that rules prohibiting nonbusiness use of e-mails should be presumptively unlawful absent a showing of special circumstances. The Register-Guard argued that there is no Section 7 right to use its e-mail system because it owns the system. 

The NLRB first considered the existence of the CSP and found that the employer had a right to maintain the policy. It noted that The Register-Guard possessed basic property rights to regulate and restrict employees on company property. 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, for Section 7 communications. 

In those cases, the Board consistently held that no statutory right existed to use an employer's equipment or media so long as the restrictions were nondiscriminatory. Therefore, the Board declined to adopt the general counsel's argument that there was something inherently unique in e-mail communication that removed it from the Board's general rule on communication devices. The NLRB also noted that the employees at issue wouldn't be entirely deprived of their ability to engage in Section 7 communications in the workplace on their own time. 

Turning to the question of whether The Register-Guard 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 nonwork-related purposes, "fail[ed] to adequately examine whether the employer's conduct discriminated against Section 7 activities." Instead, the Board adopted the analysis set forth by the Seventh U.S. Circuit Court of Appeals, which looks to whether the employer treated all communications "of a similar character" the same. 

Applying that 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. The evidence showed that The Register-Guard tolerated personal employee e-mail messages concerning social gatherings and other events. There was no evidence that it allowed employees to use e-mails to solicit other employees to support any group or organization. 

Thus, the newspaper's enforcement of the CSP with respect to the August e-mails didn't discriminate along Section 7 lines and therefore didn't violate Section 8(a) (1). Prozanski's May 4 e-mail, however, was not a solicitation. It simply clarified facts surrounding the union rally of the previous day. Since the company allowed a variety of nonwork-related e-mails other than solicitations, the Board found that The Register-Guard's enforcement of the CSP with respect to the May 4 e- mail discriminated along Section 7 lines and therefore violated Section 8(a)(1). 

Furthermore, the Board reversed the administrative law judge's (ALJ) findings that The Register-Guard violated Sections 8(a)(5) and (1) by insisting on counterproposal 26, which the ALJ found was an unlawful bargaining proposal. The NLRB found it unnecessary to decide whether the proposal was unlawful because it found no sufficient evidence showing that the newspaper insisted on the proposal. 

Board members Wilma Liebman and Dennis Walsh strongly dissented: "Given the unique characteristics of e-mail and the way it has transformed modern communications, it is simply absurd to find an e-mail analogous to a telephone, a telephone set, a bulletin board or a slip of scrap paper." The dissent continued, "Where as here an employer has given employees access to e-mail for regular, routine use in their work, we would find that banning all non-work-related 'solicitations' is presumptively unlawful absent special circumstances." The Guard Publishing Co. d/b/a/ The Register-Guard and Eugene Newspaper Guild, CWA Local 37194 (December 16, 2007). 

Bottom line 

This case represents a huge victory for employers. Employers should feel free to maintain a communications system policy such as the one at issue in this case. You should be careful, however, not to discriminatorily enforce that policy. Keep in mind the distinction that the Board drew between the May and August e-mails. You should also be aware that this decision may be reviewed in the federal courts of appeals and that the composition of the NLRB may change in the near future, which could produce a different result if a similar case reaches the Board.


If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2008 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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