The National Labor Relations Board (the Board) recently issued its decision in The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007), addressing whether employer policies that restrict employees' use of the employer's e-mail system unlawfully interfere with employees' Section 7 rights. The Board held—consistent with its treatment of such other employer property as telephones, bulletin boards and televisions—that employees have no statutory right to use an employer's e-mail system for Section 7 communications.

An employer may lawfully bar employees' non-work-related use of its e-mail system, or otherwise restrict use of its e-mail system, unless the employer acts in a manner that discriminates against Section 7 activity. Under the circumstances presented in the case, the Board held that the employer's policy, which prohibited employees from using the employer's e-mail system for "non-job-related solicitations," did not violate the Act.

The Board also held that the employer had, in one instance, enforced the policy in a manner that discriminated against Section 7 activity and, in another instance, had lawfully enforced the policy when it disciplined an employee on two separate occasions for using the employer's e-mail system to disseminate union-related e-mails. In so finding, the Board modified its approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction along Section 7 lines. The Board adopted the position of the U.S. Court of Appeals for the Seventh Circuit in holding that "unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status." Although an employer may not draw a line between prohibited and permitted communications on Section 7 grounds, an employer may draw a line between permitted and prohibited communications on other grounds that would, nonetheless, put union solicitation on the prohibited side of the line. The Board proposed the example that an employer could lawfully make a rule that permitted employees to use its e-mail system for charitable solicitations but not noncharitable solicitations, thereby permitting solicitations for charities such as the Red Cross and the Salvation Army but not solicitations for Avon products or the union.

Additionally, an employer does not discriminate when it treats some communications differently than others unless the communications are "of a similar character." Therefore, in the case at hand, although the employer discriminated on Section 7 grounds when it disciplined an employee for sending an informational message about a union rally that had taken place but did not discipline employees for sending other varied informational messages—including jokes, baby announcements and social invitations, among others—the employer did not discriminate on Section 7 grounds when it disciplined the employee for sending e-mails soliciting employees to take action in support of the union, where there was no evidence that the employer had permitted employees to use e-mail to solicit other employees to support any other group or organization.

The Board's decision is important for both employers whose workforce is unionized and employers whose workforce is not unionized, as employees in both settings have Section 7 rights under the Act. Additionally, the Board's decision underscores the importance of having, and consistently enforcing, a policy regarding employees' use of an employer's e-mail.

To read the decision: