VIEWS: 10 PAGES: 3 POSTED ON: 5/14/2010
January 2, 2008 Preventing Union Activities Via Company Email Gets Easier by Jennifer Brown Shaw Email communication has become communications under the NLRA. Section 7 protects the common at the workplace during the communications themselves. last 10 years or so. It is a fast, cheap, Section 7 Rights However, the law does not give discrete, and efficient way of employees the right to use work time distributing information about work- The NLRA protects employees and or the employer’s equipment to related matters. But these same unions efforts to gain support for communicate. So, for example, characteristics make email an ideal union representation. Section 7 employers may require employees to method for employees to generally protects employees’ limit union activities to non-work communicate among themselves communications regarding unions, as time. But they cannot prohibit regarding non-work matters, well as employees’ rights to employees from discussing pro-union including union organizing activities. communicate for their “mutual aid and sentiments on the employer’s property protection” about wages, hours, and during non-work time. At the same Many employers have policies limiting other terms and conditions of time, employees do not have the the use of company email. For employment. On the other hand, absolute right to use the employer’s example, effective policies prohibit employers have the right to demand bulletin boards to post pro-union communications that would violate productivity during work time and to information. Employees cannot hold a equal employment opportunity laws, regulate certain activities at the pro-union rally in the employer’s or emails that would place the workplace. The balance between meeting rooms. And, employers may employee in a conflict of interest. employees’ and employers’ rights ban employees from soliciting each Employers have an interest in regarding non-work-related other for non-work purposes during protecting their servers from viruses communications has been the subject work time. or inappropriate email attachments, of significant litigation since Congress and in preserving storage space. passed the NLRA in the 1930’s. There is an important caveat, however. Employers are not Employers also may seek to limit email There are a number of employer permitted to “discriminate” against communication among employees policies that regulate communications communications protected under regarding union organizing. Most at work. These may include section 7. This area of the law employers are non-union and probably limitations on the use of company significantly changed when the NLRB want to stay that way. To remain bulletin boards, prohibitions against issued its opinion in Guard Publishing union-free, employers must be aware solicitation and distribution at work, on December 21, 2007. Before Guard and proactive regarding pro-union and policies regulating non-work Publishing, if employees could use solicitation. However, employers that activities and employees’ and third bulletin boards for certain non-work are overly zealous in their efforts to parties’ use of employers’ equipment related activities and solicitations, deter employees from joining labor and property. then the employer could not ban organizations may run afoul of the solicitations regarding union National Labor Relations Act Employees and unions seeking activities. If employers permit (“NLRA”). The National Labor support among a group of employees employees to meet regarding personal Relations Board (“NLRB” or “Board”) have battled with employers over the business in meeting rooms, the is the federal agency that enforces the use of employers’ walls and meeting employer cannot take action if the NLRA. In Guard Publishing Co., rooms, the right to pass out flyers, subject of the meeting turns to decided Dec. 21, 2007, the NLRB obtain access to workers at the job unionization. Employers still may not explained the circumstances under site, and the like. “discriminate,” but the NLRB which employers may limit pro-union modified the definition of discrimination in the Guard company had no right to ban personal The Board on appeal noted that there Publishing decision. emails concerning union issues while was no evidence Guard Publishing permitting other non-work-related had ever allowed employees to use the The Guard Publishing Co. Decision emails. email system to solicit on behalf of an outside organization (with the Guard Publishing operates a No General Right to Use Workplace exception of a single charitable newspaper called the Register-Guard. Email for Pro-Union Activities organization). Therefore, the Board Some of the employees were held that company did not represented by a local union affiliated On appeal, the NLRB first considered “discriminate” against the use of email with the Communication Workers of whether employers must affirmatively for solicitations; the company banned America. The company had in place permit pro-union communications on them all in its policy and there was no an email policy providing: their email systems. Employee evidence of selective enforcement. On “Communications systems are not to advocates argued that limits on email the other hand, the Board found that be used to solicit or proselytize for communications, even those requiring the employee’s use of email to “set the commercial ventures, religious or email to be used primarily for business record straight” regarding a dispute political causes, outside organizations, reasons, “chilled” employees’ section 7 between the union and management or other non-job-related solicitations.” rights. They also tried to argue that was not a solicitation and therefore employers’ property interests in their should have been allowed on the same The case arose after the newspaper’s email systems should yield to basis as other non-work-related management disciplined a union employees’ section 7 rights. The Board emails. member for sending three emails to was unmoved, holding that employers other employees regarding union own their email systems like they own The NLRB then re-defined the activities. The first email was their walls and bulletin boards. concept of “discriminatory” intended to respond to a company Therefore, the NLRB ruled, there is no enforcement of policies. Under the communication, and did not call inherent right protecting employees’ new rule, to find a violation, the Board employees to action or otherwise pro-union email communications. must determine that the employer solicit the employees. The second Employers therefore may ban email distinguished between email asked employees to wear green communications for non-business communications “along section 7 to support the union’s bargaining related solicitations. lines.” That is, if the employer proposals. The third email solicited prohibits solicitations on behalf of employees’ participation in the union’s The New Definition of third party organizations (unions, involvement in an upcoming parade. “Discrimination” under the NLRA political groups, insurance salespersons, etc.), then the employer The union filed an unfair labor The Board then turned to claims that may prohibit union solicitation as practice charge, alleging that Guard the company discriminated against well, even if the employer tolerates Publishing’s policy violated the employee for sending pro-union personal emails that do not contain employees’ section 7 rights to emails. The Board developed a new solicitations. communicate freely, and that the standard for evaluating whether disciplinary action was discriminatory employers’ policies are unfair labor Moreover, the Board expressly because the company permitted practices because they “discriminate” recognized that an employer may employees to communicate about against the exercise of section 7 rights. make other distinctions, so long as the other personal matters unrelated to lines are not drawn to disfavor unions the union. As stated above, under prior Board over other similar groups. For law, if an employer permitted example, the employer may allow An administrative law judge agreed employees to post personal, non-work solicitations by charitable with the employer that the policy related information on bulletin organizations and ban solicitations by banning solicitation itself was legal. boards, it could not prohibit union- everyone else. In that way, the However, the judge decided that related posts. The Administrative employer would not “discriminate” Guard Publishing’s management Law Judge relied on this line of cases against solicitations protected by discriminated against the employee. when it found Guard Publishing section 7, but rather would The judge noted that the employer discriminated against the union “discriminate” (lawfully) against all permitted emails on many subjects activist employee. Thus, there was solicitations except for charitable unrelated to conducting company evidence Guard Publishing had ones. business. Therefore, relying on a permitted employees to use emails for number of prior court and board a variety of personal communications. decisions, the ALJ held that the Conclusion board, and email policies to ensure majority of three NLRB members, they conform with the new standard with two members dissenting. Once The NLRB’s decision in Guard articulated in the Guard Publishing the Board membership changes (as it Publishing applies to union and non- opinion. generally does with a new union employers alike. Employers administration), the applicable legal may wish to review their non- It also bears noting that Guard standards may once again change. solicitation and distribution, bulletin Publishing was decided by a bare Reprinted by permission of The Daily Recorder.
Pages to are hidden for
"DR 122907 Preventing Union Activities Via Company Email _00022689_DOC"Please download to view full document