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DR 122907 Preventing Union Activities Via Company Email _00022689_DOC


									                                                                                                     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.

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