The National Labor Relations Board has ruled that a notice from management to workers that restricted the use of the company’s e-mail system by union representatives for union purposes on its face discriminated against statutorily protected activities in violation of the National Labor Relations Act. Weyerhaeuser Co., 359 NLRB No. 138 (June 20, 2013).

The Association of Western Pulp and Paper Workers (“Union”) represents approximately 150 production and maintenance employees at Weyerhauser’s plant in Longview, Washington. In 2004, Weyerhaeuser implemented a company-wide electronic media use policy limiting employees’ use of the company’s e-mail system to business purposes. The company, however, allowed some personal use with management’s consent. In the 2007 collective bargaining agreement between Weyerhaeuser and the Union, union representatives were allowed to use the company’s e-mail system to discuss contract administration. The agreement provided that employees may use the company’s e-mail system for these purposes during work hours, when the representatives’ schedules and supervisors allowed.

In 2010, however, Weyerhaeuser issued a Company Informational Notice (“CIN”) exclusively to Longview employees that explicitly “supersede[d] all discussions on the use of the Company e-mail system by Union Representatives to conduct Contract Administration.” The CIN stated that the time spent by union representatives discussing contract administration matters, as allowed under the relevant contract provision, had “risen to an unacceptable volume.” Therefore, it directed, these communications “should be focused on the process that needs to take place rather than protracted dissertations or arguments composed and sent during working hours.” The Union filed charges with the NLRB against Weyerhaeuser claiming the 2004 policy and the CIN violated workers’ rights to engage in protected concerted activities under Section 7 of the NLRA and alleging Weyerhaeuser unlawfully disciplined an employee pursuant to the CIN.

An NLRB Administrative Law Judge held that Weyerhaeuser’s 2004 policy on electronic communications was lawful under the Board’s ruling in Register Guard, 351 NLRB 1110 (2007). The ALJ noted that, as in Register Guard, the policy generally prohibited the use of the company’s e-mail and telecommunications systems for all nonbusiness-related purposes. Therefore, the 2004 policy was lawful because it did not facially discriminate against Section 7 protected activities. However, the ALJ also held that the CIN, on its face, discriminated against Section 7 activities, and so Weyerhaeuser violated the Act when it implemented the CIN as a work rule. Accordingly, the ALJ also found Weyerhaeuser violated the Act by disciplining an employee pursuant to the unlawful rule.

The NLRB affirmed the ALJ’s ruling. It noted, “By its own terms, the CIN placed limitations only on email messages sent by union representatives and related to union business.” Furthermore, the Board stated that the CIN was not an application of the company’s existing electronic media use policy, but was a “freestanding restriction on union-related email that the [company] put in place independently of its previous efforts to regulate the use of its electronic media.” Because the rule was “specific to the Longview facility and was promulgated in response to email use by union representatives there,” Weyerhauser violated the Act by implementing the CIN, the Board concluded.

This decision illustrates that work policies that apply equally to all forms of nonbusiness communications, i.e., policies that are otherwise content-neutral, remain important to regulating use of company communication systems. However, those that specifically differentiate between union and nonunion activities are unlawful.