Before the advent of the digital age, when there was an organizing campaign afoot, most employers would be told by their legal counsel to put their rolodex under lock and key, and to review their standard no solicitation/no distribution policies in an effort to slow down organizing attempts in their workplace. Obviously much of this has changed in light of the use of emails and the internet by union organizers, employees, and unions in their attempts to organize employees. Companies often make it easy to exchange information internally by publishing an email listing for every employee on the payroll, which any employee can easily hand over to a union organizer, or worse, in some cases it is simply published on the company’s web page. Accordingly, unions can easily send personalized messages out to each and every employee with minimal effort. Moreover, employees can now develop their own group Facebook pages, and otherwise interact via group messages regarding organizing efforts, all behind the scenes and without the knowledge of the employer.
For reasons that still baffle me, the NLRB ruled in 2007, in the Register Guard case, that employees had no statutory right to use an employer’s email system for Section 7 purposes to organize the workplace. This position was totally contrary to the myriad of other decisions that were coming out of the NLRB in its effort to micromanage the workplace. So why the NLRB backed off when it came to the email system of an employer is difficult to understand, but I guess one should not look a gift horse in the mouth. In any event, this ruling has been under attack by unions since its inception, and, most recently, was subject to litigation in the case of Purple Communications Inc., 361 NLRB No. 43 (Sept. 24, 2014). However, the NLRB took a pass on addressing the issue. So the rule remains that a policy prohibiting employees from using the email system for non-job related solicitations is entirely appropriate. Perhaps the Board is awaiting a case where a claim of discriminatory enforcement is made, as those cases are easier to support, in terms of violation of the law, at least in front of the Courts of Appeal. But even the courts understand that the Board has a rather skewed viewpoint when it comes to what is discrimination under various HR policies. Some of these courts have found that the Board was trying to compare apples to oranges, versus apples to apples, in their analysis of what is discrimination regarding such policies and so have denied enforcement of such cases.
The Board finally adopted the more appropriate standard in the Register Guard case in which it found that nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw the line between charitable solicitations and non-charitable solicitations; between solicitations of a personal nature and solicitations for a commercial sale of a product; between invitations for an organization and invitations of a personal nature; between solicitations and mere talk; and between business related use and non-business related use. In each of these examples, the fact the union solicitation would fall on the prohibited side of the equation does not establish that the rule discriminates along Section 7 lines, which makes perfect sense.
However, notwithstanding these previous rulings by the courts, and now the NLRB, unions are still attempting to have the Board overturn Register Guard. Unions were hopeful that Purple Communications Inc. would be the game changer, but it was not. In any event, we will keep a close watch on such matters as no doubt it will be subject to challenge in the future.