NATIONAL LABOR RELATIONS ACT
By Sharon G. Hobbs
March 2008
A December 2007 decision of the National Labor Relations Board (NLRB) held that employees do not have a statutory right to use their employer’s email system to solicit support for a union. The controversial ruling split 3 - 2 along party lines.
Section 7 of the National Labor Relations Act (NLRA) protects the rights of employees to organize and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Mutual aid or protection is not limited to unionization efforts and includes employees’ rights to seek to improve the terms and conditions of their employment with or without union involvement.
Section 8(a)(1) of the NLRA prohibits employers from interfering with employees who are attempting to exercise their rights under Section 7. Section 8(a)(3) prohibits employers from discriminating in employment to discourage employee membership in a union.
The union sued the employer, The Register-Guard, a newspaper publisher, for adopting an email policy prohibiting employees from using the company’s email system for “non- job-related solicitations” and for disciplining a union member for using the email system for union-related emails. The union argued that the policy violated Section 8(a)(1) and that the discipline violated Section 8(a)(1) and (3).
The Board held that the employees had no right to use the email system for Section 7 purposes, therefore, the policy prohibiting the use for union solicitations was not a violation of Section 8(a)(1), and the discipline of an employee for violation of the policy was not a violation of Section 8(a)(1) and (3).
The company allowed employees to use the email system for personal messages including birth announcements, party invitations, offers of sports tickets, and requests for services, such as dog walking. The company prohibited use of its system for “solicitation for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” It appeared that the policy was enforced as the only solicitation for any outside cause or organization which was allowed was for the company’s annual United Way campaign.
The Board held that the employer had a property right to regulate and restrict its email system. Previous cases involving employer bulletin boards and employer telephones required that employer restrictions be non-discriminatory. The Board held that its own previous approach to email systems, which considered only whether the employer allowed non-business use, was inadequate. The Board would allow the employer to make distinctions between personal use and use on behalf of outside organizations. The employer may choose to make distinctions between solicitations and mere talk, between personal solicitations and commercial solicitations, and/or between business-related use and non-business-related use.
The Board would also allow distinctions between charitable and non-charitable organizations. The only kinds of distinctions which the Board would not allow the employer to make would be distinctions between particular unions or distinctions allowing anti-union but not pro-union use.
In the Register-Guard case, the Board found that the employer’s discipline of an employee for use of the email system for union solicitation was not illegal. However, the Board held that the company’s discipline of the same employee for an email message attempting to set the record straight on certain information which the company had promulgated regarding a union rally, was illegal as it was informative rather than a ‘solicitation’ as prohibited by the employer’s policy.
CONCLUSION:
At least until this decision is overruled by a court or the Board itself, in the event of a shift in political control, employers have more flexibility then previously allowed to prohibit use of their email systems for union solicitation.
Sharon Hobbs practices in the areas of business law, employment law and estate planning.
© 2008 Rinke-Noonan.
This article is a general discussion of legal issues and is not intended to be legal advice. We would be pleased to review the specific facts and law regarding any given legal matter.
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