In a long-awaited decision, the National Labor Relations Board ruled that companies may prohibit employees from using company-owned e-mail systems to organize unions. In The Guard Publishing Company, 351 NLRB No. 70 (December 16, 2007), the Board found lawful a policy which stated that employees could not use the company’s e-mail system to send non-job-related solicitations. Three of the five members of the Board found that there is no right of employees to use company-owned equipment to organize a union. Although employees may discuss unions during face-to-face conversations on company-owned or leased property, sending e-mails involves the use of the company’s equipment. Addressing arguments that e-mail use is the modern way employees engage in “face-toface” conversations, the Board’s majority stated that its decision does not prohibit employees from talking about unions and soliciting support for a union in non-e-mail, face-to-face conversations.
In addition, the Board found in favor of the company when the company issued two written warnings to an employee who sent e-mails to her fellow employees about supporting a union. Since employees do not have the right to use company equipment, discipline for using the equipment does not violate federal law. The Board did not find any disparate action by the company, which did not discipline employees for using the company- owned e-mail system for sending personal e-mail messages to other employees. The Board distinguished between these personal, non-workrelated messages and group messages. Since the company never permitted e-mails for other group activity, the company could discipline the employee who used the e-mail system for the group activity of soliciting support for the union. The company’s action, therefore, was not discriminatory. The Board relied upon two cases issued by the Seventh Circuit Court of Appeals in Chicago, which overruled prior Board decisions finding discriminatory the discipline of employees who posted group notices on company-owned bulletin boards.
The two other members of the Board stated that it was “simply absurd to find an e-mail system analogous to a telephone, a television set, a bulletin board or a slip of scrap paper.” Rather than making a blanket rule that companyowned equipment may not be used, the dissenters would balance the employees’ right to engage in union activity against the company’s right to protect its business interests. To the dissenters, if a company allows employees to use e-mail for personal reasons, the company must allow employees to use e-mail for group reasons.
According to Alan M. Kaplan, company handbooks include policies prohibiting solicitations by employees. These policies are still lawful, but only if the correct language is used. For example, lawful policies prohibit solicitations during the working time of the soliciting employee and the employee being solicited. Prohibiting solicitations during working hours is unlawful, because working hours includes the entire time the employee is present at the workplace. In addition, a company may not apply its policy in a discriminatory manner. Thus, if a company allows the solicitation of signatures on holiday and birthday cards, or it allows the collection of money for charitable purposes, the company may not prohibit the solicitation of signatures on union authorization cards or petitions by employees to redress grievances. Therefore, human resource professionals should review their policy handbooks and supervisory practices to ensure compliance with federal labor laws.