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Feb 2007
01
February 01, 2007

Labor Board Decision to Have Widespread Impact on Employer E-Mail System

Here's the scenario:

An employer's policy limits Company e-mail use to business purposes only. The employer has, however, historically allowed employees to send personal e-mails to one another, to plan non-work-related parties, and to sell girl scout cookies. The employer just learned that five employees are sending e-mails through the Company system about forming a union. Another three employees are using the e-mail system to complain about their recent wage increases and talking about ways to ask for bigger raises. And another employee has been sending e-mails around to co-workers asking if they think the employee contribution amount for health care is "too much." May the employer discipline these employees for improper use of the e-mail system?

The answer to these and other questions will depend on how the National Labor Relations Board ("NLRB") decides a case in which it has invited briefs and in which it will be hearing oral arguments on March 27, 2007. The case that is bringing all of these issues to the forefront is Guard Publishing Co., d/b/a The Register-Guard, N.L.R.B. No. 36-CA-8743-1 (2002). In that case, the NLRB has said it will attempt to address whether (1) employees have the right to communicate regarding union or other protected matters using their employer's e-mail system and if so, what restrictions may the employer put in place; (2) the NLRB's traditional solicitation rules should apply to e-mail; (3) the employer may restrict non-employee access to its e-mail system; (4) the location of the employee's workplace is relevant; (5) employees' use of the employer's e-mail system is a mandatory subject of bargaining; (6) there are common policies employers have that regulate employee access to e-mail; and, (7) there are any relevant technological issues to consider.

In Guard Publishing, a NLRB Administrative Law Judge ("ALJ") upheld and struck down certain aspects of the employer's e-mail policy. The policy at issue banned all non-business use of the employer's e-mail system. Based on established precedent, the ALJ held that this policy was not facially overbroad, but instead was a valid limitation on the employees' use of the employer's communications system. Generally the NLRB allows an employer to limit employee use of its communications equipment (including bulletin boards, telephones, public address systems, video equipment, and e-mail).

The main problem for the employer in Guard Publishing was that the NLRB has long held that employers who limit employee use of communications equipment must do so in a non-discriminatory manner. In this case, the employer only enforced its communications policy against individuals conducting union activity. It allowed third parties access to the e-mail system (including Weight Watchers and the United Way) and allowed employees to use it for non-business related matters (e.g., e-mail from an employee about an upcoming birthday party). Based on the employer's discriminatory enforcement, the ALJ held that even though the policy was facially valid, the employer violated the National Labor Relations Act ("NLRA").

The Union in Guard Publishing attempted to expand the concept of an e-mail system by arguing that an e-mail system is, itself, a workplace. Under this theory, an employer could not prohibit all e-mail solicitation. For example, employees would be allowed to engage in e-mail solicitation during their non-work time. The ALJ disagreed with the Union's argument and noted that the Board has never held that e-mail is a workplace; instead, the NLRB has consistently found that employers may non-discriminatorily limit the use of their communications equipment. That reasoning notwithstanding, the ALJ also found that the employer in Guard Publishing violated the NLRA by insisting on a bargaining proposal that prohibited the use of the e-mail systems for union purposes.

As noted above, the NLRB's decision in Guard Publishing will impact virtually every employer. This is because in addition to protecting the rights of unionized employees, the NLRA also gives non-union employee the right to engage in concerted activity for mutual aid and protection. We will continue to monitor this important case and will alert you as soon as the Board issues its decision. If you are interested in filing an amicus brief in this case, the brief must be filed on or before February 9, 2007. Warner Norcross & Judd LLP can assist you in doing so. Alternatively, if you have other questions or need additional information regarding the Guard Publishing case or any labor or employment law matter, please contact any member of our Labor and Employment Law Practice Group.

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