On December 16 the National Labor Relations Board issued its long-awaited decision in Guard Publishing Co., addressing the balance between employee rights to solicit support for unions and an employer's right to control its e-mail system. The Board ruled that an employer may prohibit union-related use of its e-mail system as long as it does not do so on a "discriminatory" basis. Perhaps even more importantly, the Board also changed its rule on what constitutes unlawful discrimination against union activity where use of employer property is involved.
The Guard Publishing decision follows the pattern that Board-watchers have come to expect in recent years. It was issued by the three Republican Board members--Chairperson Battista and members Kirsanow and Schaumber. Democratic members Liebman and Walsh dissented. And therein lies a caution for employers. Battista's term expired on December 17. Kirsanow and Walsh are "recess appointees," which means that their appointments will expire at the next Congressional annual adjournment. The Senate is unlikely to confirm further appointments by President Bush. So, like many other important NLRB decisions in the last few years, this one could have a short life, depending on the outcome of the 2008 Presidential election.
To understand exactly what the decision says, you need to know the Board's three basic rules about union-related communications in the workplace.
First, an employer may not bar union-related communications among employees on employer property during the employees' nonworking time, such as breaks, and may bar union-related conversations during working time only if it also bars other nonbusiness conversations during working time.
Second, an employer may prohibit union-related communications by employees using specific employer facilities, such as bulletin boards and telephones, if it does not discriminate by allowing other nonbusiness use of those facilities.
Third, an employer may bar nonemployee union organizers from its premises unless union agents have no other way to communicate with employees (such as in a "company town" situation), but the employer may not bar access by union agents if it allows other outside solicitors on its premises (except for limited charitable solicitations).
The key issue in Guard Publishing was whether e-mail should be treated the same as employee communications on nonworking time (cannot be prohibited), or whether it should be treated the same as other situations involving "employer equipment and facilities" such as telephones and bulletin boards (employer may bar union-related usage if it does not discriminate). The Board's General Counsel argued that e-mail has become so important as a means of day-to-day communication that employers should not be allowed to restrict its usage for union-related communications except to enforce reasonable rules to maintain the system's security and efficiency. Employers argued to the contrary--that the rules for e-mail should be the same as the rules for employer bulletin boards (the employer can limit the right to use the "employer system" to business communications).
The Board sided with employers. The majority ruled that no special rule is needed for e-mail systems, and that an employer may restrict nonbusiness usage in the same way that it can restrict use of its other property such as telephone systems, bulletin boards and conference rooms.
If the Board had said nothing more, Guard Publishing would be an important case for employers but would have left them with a dilemma, because many employers do not restrict their e-mail systems to "business use only" but rather do allow some personal and social use by employees. Under existing Board precedent, these exceptions to "business only" use could have prevented employers from restricting union solicitation e-mails by employees to other employees. But the Guard Publishing decision went further and also made a major change in the Board's position on what constitutes "discrimination" against union-related communications.
Adopting an approach advocated by the Seventh Circuit Court of Appeals, the Board announced that from now on it will not rule that an employer discriminates against union-related use of its facilities just because the employer allows some personal use by employees. Therefore, even though Guard Publishing allowed employees to send e-mails about "social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or other similar personal items," the Board ruled that this did not constitute unlawful discrimination because the company did not allow employees to use the e-mail system "to solicit other employees to support any group or organization" (except the United Way, which the Board ruled was a permissible exception to a general rule against solicitations for "outside organizations").
As a result, the Board approved discipline of an employee for sending two "union solicitation" e-mails to co-employees at their company e-mail addresses (even though the e-mails were sent from outside the employer's system). The Board also ruled, however, that the employer unlawfully disciplined the employee for sending a third e-mail that did not directly "solicit support," but rather "simply clarified the facts" about a union rally that had already been the subject of e-mail discussion. The Board ruled that this e-mail was similar to other personal e-mail communications that the employer had allowed. Because of the specific facts in the case it is difficult to generalize about the Board's distinction between the "solicitation" e-mails and the "clarification" e-mail, but that distinction will be critical in future cases. If the Guard Publishing decision survives long enough to become established law, there will be many "follow-up" cases on this issue.
Finally, there is one troubling comment in the Guard Publishing decision. The majority noted that there was no evidence that Guard Publishing's employees lacked other means to communicate among themselves about unions. Although the Board noted that this issue was not determinative, the comment leaves room for unions to argue that where employee workplaces are dispersed, such as in "virtual workplace" situations, or perhaps even widespread employer facilities, the rule should be different.
If you have any questions regarding union activity in the workplace, or any other labor and employment issue, please feel free to contact a member of our Labor and Employment Practice Group.