In California Institute of Technology Jet Propulsion Laboratory, the National Labor Relations Board affirmed a split ruling regarding the employer’s alleged discriminatory conduct and employee conduct policy. The NLRB first found that the employer violated Section 8(a)(1) of the National Labor Relations Act by discriminatorily issuing written reprimands to five employees who used the employer’s email system to communicate with their coworkers about a new background check requirement, while permitting employees to use the email system for similar non-work purposes. But the NLRB also found that the employer’s ethics and conduct policy was not overly broad, and thus it did not violate the Act.

Employees’ Work Emails Were Protected, Concerted Activity Under the Act

The California Institute of Technology Jet Propulsion Laboratory (JPL) is a federally funded research and development center operated by the California Institute of Technology with approximately 5,000 employees. In 2011, JPL issued written disciplinary reprimands to five JPL employees because they used JPL’s internal email system to discuss the implications of a recent United States Supreme Court ruling on the working conditions at JPL. The five employees were plaintiffs in the Supreme Court case, in which the Supreme Court ruled that personal background investigations as part of the process of issuing employee identification badges were legally permissible under a Presidential Directive.

In their emails, the employees discussed the lawsuit and alternatives to the identification badge process. The emails were sent to various employee listservs, which ranged in size from 97 recipients to over 5,000 recipients. The reprimands described the employees’ emails as “unsolicited bulk email” and cited violations of four separate JPL policies regarding spam, commercial and political endorsements, ethics and business conduct, and use of JPL and sponsor resources.

The NLRB agreed with the Administrative Law Judge’s (ALJ) determination that the employees’ emails were clearly protected, concerted activity under the Act because the employees were discussing their working conditions. The employees also did not lose the protection of the Act by using their work computers and email accounts to send the emails. Under the NLRB’s Register Guard decision, employees generally do not have a right to use their employer’s computers to engage in protected activity, and may be lawfully disciplined for doing so. However, an employer is prohibited from allowing use of its computers and email for non-work purposes while discriminating against such use for similar protected activities. In this case, the NLRB upheld the ALJ’s finding that JPL had a practice of allowing use of its computers and email for a wide range of non-work purposes (e.g., social events, lost and found, birth announcements). Given this established practice, JPL could not lawfully discipline the employees based upon their similar use in sending the emails at issue.

Employer’s Ethics and Business Conduct Policy Was Not Overly Broad

The complaint also challenged JPL’s ethics and business conduct policy, which required employees to “avoid any actions which could reasonably be expected to…discredit [JPL].” The NLRB’s General Counsel argued that the policy was similar to employer policies that were previously struck down by the NLRB in Karl Knaus Motors (upon which we previously reported) and Costco Wholesale Corp. (upon which we also previously reported). The ALJ, however, distinguished the employer policies in those two cases on the basis that neither used the word “discredit.” In upholding JPL’s policy, the ALJ instead relied upon three older decisions in which the NLRB had upheld employer policies that specifically used the term “discredit.” The ALJ acknowledged that given the similarity of the terminology in the two sets of cases, yet with opposite results, it might be advisable for the NLRB to provide clarity. Not surprisingly, the NLRB declined the ALJ’s invitation to do so.

For employers, this decision illustrates the risks associated with allowing employees to use employer-provided technology for non-work purposes. By allowing such use, employers may lose their ability to rely upon Register Guard to discipline employees who use employer technology for non-work purposes. This decision also illustrates the continued difficulty that employers face in reviewing employee attitude and conduct policies to assess whether they comply with the Act. As the ALJ readily acknowledged in his decision, recent NLRB decisions analyzing whether similar employer policies are overly broad have produced inconsistent and often conflicting results. As such, employers should continue to tread carefully in this area and consult with their legal counsel to determine the best course of action for their specific situation.