On Dec. 16, 2007, the National Labor Relations Board (“NLRB” or “Board”) issued its long awaited decision in Guard Publishing d/b/a Register-Guard, 351 NLRB No. 70, addressing the use of an employer’s email system by employees for union-related activity. In a bitterly contested 3-2 decision, the Board held that an employer did not violate the National Labor Relations Act (“NLRA”) by prohibiting an employee/union president from sending emails to employees urging them to support the union. Significantly, in reaching this decision, the Board announced a new standard for determining whether an employer has “discriminatorily” enforced its policies against union-related solicitation.

Factual Background

In Register-Guard, the employer, a newspaper publisher, had a communication systems policy (“CSP”) prohibiting use of its e-mail system for “non-job related solicitations.” The CSP provided:

Company communication systems 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 solicitations.

When an employee/union president sent three union-related emails, she received two written warnings. The union filed a charge with the NLRB alleging that the employer’s maintenance of a policy prohibiting use of email for Section 71 purposes and its enforcement of the policy was unlawful.

The CSP Was Valid

Whether employees have a specific right under the Act to use an employer’s email system for Section 7 purposes was an issue of first impression for the NLRB. However, consistent with “a long line of cases governing employee use of employer-owned equipment,”2 the Board concluded that Register-Guard’s CSP prohibiting use of its email system for “non-job related solicitations” was valid on its face. The Board explained that an employer has a basic property right to restrict and regulate employee use of an employer’s property. Therefore, the Board concluded that maintenance of the CSP did not violate federal law.

New Discrimination Standard

Significantly, the Board used this case to announce a new standard for determining whether a lawful policy is being discriminatorily enforced. The Board clarified that “discrimination under the Act means drawing a distinction along Section 7 lines.” The Board went on to explain that, while distinctions along Section 7 lines are impermissible, employers are permitted to distinguish between personal non-work-related communications, such as forsale notices and wedding announcements, and “group” or “organizational” communications, such as union materials. The Board reasoned that this approach better reflects the principle that “discrimination means the unequal treatment of equals.”

Applying its new standard, the Board evaluated Register-Guard’s application of its CSP to the three union-related emails sent by the union president: the first email urged all employees to wear green to support the union; the second e-mail urged employees to participate in the union’s entry in a local parade; and, the third email clarified certain facts surrounding a union rally. While Register-Guard had allowed its employees to use email for various personal messages, including baby announcements, party invitations and occasional offers of sports tickets and/or requests for services, the Board found that there was no evidence that the employer had ever allowed employees to use email to solicit support for or participation in an outside cause or organization (other than United Way for which Register-Guard conducted a periodic charitable campaign).

Because the first two emails from the union president were attempts to solicit support for the union, the Board found that Register-Guard did not discriminate against the union president by enforcing its email policy. However, with respect to the third email, the Board found that the email merely clarified facts and was not a solicitation or a call for action; therefore, this e-mail was no different than other emails permitted by Register-Guard. Accordingly, the Board found that Register-Guard’s enforcement of the CSP with respect the third email discriminated along Section 7 lines and was unlawful under federal law.

Conclusion

It is unlikely that this decision is the final word on the e-mail issue (it is likely the case will be appealed). However, based on the decision in Register-Guard, an employer may establish a policy prohibiting use of emails for “non-job-related solicitations” and can draw distinctions between personal, non-work-related information-sharing communications and group or organizational solicitation-type communications. This decision provides employers more flexibility. Employers are encouraged to review their current email policies and create new policies or revise current policies, where appropriate, to take advantage of the new, more flexible standard. However, in doing so, employers must be careful to: distribute the new policy to all employees; train employees, managers and supervisors on any policy revisions; and, ensure that enforcement of the policy is uniform and consistent, and not applied in a discriminatory manner.