In a case of first impression, the National Labor Relations Board (NLRB or “the Board”) recently ruled that an employer could implement and enforce on a nondiscriminatory basis a policy that prohibited employees from using company email for “all non-job related solicitations.” The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, Cases 36-CA-8743-1, 36-CA-8849-1, 36-CA-8789-1, and 36-CA-8842-1 (December 16, 2007).

Employer Establishes E-Mail Policy
The Employer publishes a newspaper, The Register-Guard. About 150 of the Employer's employees are represented by a union. In 1996, the Employer began installing a new computer system, through which all newsroom employees and many (but not all) other unit employees had e-mail access. In October 1996, the Employer implemented a "Communications Systems Policy" (CSP) that governed employees' use of the Employer's communications systems, including e-mail. The policy stated, in relevant part:

Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.

The employees used e-mail regularly for work-related matters. Throughout the relevant time period, the Employer was aware that employees also used e-mail to send and receive personal messages. The record contained evidence of e-mails such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. However, there was no evidence that the employees used e-mail to solicit support for or participation in any outside cause or organization other than the United Way, for which the Employer conducted a periodic charitable campaign.

Union President Disciplined for Use of Employer E-Mail System
Suzi Prozanski was a unit employee and president of the employees' Union. In May and August 2000, Prozanski received two written warnings for sending three e-mails to unit employees at their Register-Guard e-mail addresses. The Employer contended that the e-mails violated the CSP.

The first e-mail involved a Union rally that took place on the afternoon of May 1, 2000. Earlier that day, the newspaper’s managing editor, Dave Baker, sent an e-mail to employees stating that they should try to leave work early because the police had notified the Employer that anarchists might attend the rally. Employee Bill Bishop sent a reply e-mail to Baker and to many employees. Bishop's e-mail message also attached an e-mail the Union had received from the police stating that the Employer had notified the police about the possibility of anarchists. Thus, Bishop's e-mail implied that Baker was mistaken or untruthful when he told employees that the police had notified the Employer about the anarchists.

The rally took place as scheduled. Afterward, Prozanski learned that certain statements in Bishop's e-mail had been inaccurate. On May 2, Prozanski told Baker that she wanted to communicate with employees to "set the record straight." Baker told her to wait until he talked to the human resources director.

On May 4, Prozanski had not heard back from management about her request, so she told Baker that she was going to send an e-mail response. Baker said, "I understand." Prozanski then sent an e-mail entitled, "setting it straight." She composed the e-mail on her break but sent it from her work station on the Employer’s premises.

Prozanski's e-mail began: "In the spirit of fairness, I'd like to pass on some information to you.... We have discovered that some of the information given to you was incomplete.... The Guild would like to set the record straight." The e-mail then set forth the facts surrounding the call to police about anarchists attending the rally. The e-mail was signed, "Yours in solidarity, Suzi Prozanski."

A few hours later, Baker told Prozanski that she should not have used company equipment to send the e-mail.

The following day, May 5, Baker issued Prozanski a written warning for violating the CSP by using e-mail for "conducting Guild business."

Prozanski received a second written warning on August 22, 2000 for two e-mails sent on August 14 and 18. The August 14 e-mail asked employees to wear green to support the Union's position in pending negotiations. The August 18 e-mail asked employees to participate in the Union's entry in an upcoming town parade. As with the May 4 e-mail, Prozanski sent these e-mails to multiple unit employees at their Register-Guard e-mail addresses. However, this time she sent the e-mails from a computer in the Union's office, located off the Employer's premises.

Prozanski later testified she thought that the May 5 warning was for using the company's equipment to send the message, and that there would be no problem if she sent e-mails from the Union's office instead. On August 22, however, Walden issued Prozanski a written warning, stating that Prozanski had violated the CSP by using the Employer's communications system for Guild activities. The warning quoted the CSP's prohibition on "non-job-related solicitations."

Union Files Complaint with NLRB
The Union filed unfair labor practice charges against the Employer, alleging violations of the National Labor Relations Act (the NLRA or “the Act”).

Noting that an employer may lawfully limit employee use of the employer's equipment or media, the judge found that The Register-Guard did not violate Section 8(a)(1) of the Act by maintaining the CSP.

The judge, however, found that the Employer did violate Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit union-related e-mails while allowing a variety of other non-job related e-mails. The judge also found that The Register-Guard violated Section 8(a)(3) and (1) by disciplining Prozanski for her May 4 and August 14 and 18 e-mails.

NLRB Upholds Employer’s E-Mail Policy Prohibiting Non-Job Related Solicitations
On appeal, the NLRB agreed with the judge that the Employer did not violate Section 8(a)(1) by maintaining the CSP. It also agreed with the judge that the Employer's enforcement of the CSP with respect to Prozanski's May 4 e-mail was discriminatory and therefore violated Section 8(a)(1) of the NLRA. Likewise, the board held that the written warning issued to Prozanski for the May 4 e-mail violated Section 8(a)(3) and (1).

The NLRB did, however, reverse the judge and dismissed the allegations that the Employer's application of the CSP to Prozanski's August 14 and 18 e-mails was discriminatory. It also found that The Register-Guard’s disciplining of Prozanski's for those e-mails did not violate Section 8(a)(3) violation.

According to the Board, the CSP, in relevant part, prohibited employees from using the Employer's e-mail system for any "non-job-related solicitations." Consistent with a long line of cases governing employee use of employer-owned equipment, the NLRB found that “the employees here had no statutory right to use the Employer's e-mail system for Section 7 matters.” Therefore, the Employer did not violate Section 8(a)(1) by maintaining the CSP.

The Board reasoned that an employer has a "basic property right" to "regulate and restrict employee use of company property." The Employer's communications system, including its e-mail system, was the Employer's property and was purchased by the Employer for use in operating its business. The Board held that The Register-Guard had a legitimate business interest in maintaining the efficient operation of its e-mail system, because “employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees' inappropriate e-mails.”

The NLRB observed that whether employees have a specific right under the Act to use an employer's e-mail system for union activity is an issue of first impression. In numerous cases, however, where the NLRB has addressed whether employees have the right to use other types of employer-owned property--such as bulletin boards, telephones, and televisions--for Section 7 communications , the Board has consistently held that there is "no statutory right ... to use an employer's equipment or media," as long as the restrictions are nondiscriminatory.

The Board noted that the Employer’s CSP did not regulate traditional, face-to-face solicitation. Indeed, “employees at the Employer's workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas.” What the employees sought here was use of the Employer’s communications equipment to engage in additional forms of communication. Yet, "Section 7 of the Act protects organizational rights ... rather than particular means by which employees may seek to communicate."

The Board recognized “that e-mail has, of course, had a substantial impact on how people communicate, both at and away from the workplace.” Moreover, “e-mail has some differences from as well as some similarities to other communications methods, such as telephone systems.” For example, transmission of an e-mail message, unlike a telephone conversation, does not normally "tie up" the line and prevent the simultaneous transmission of messages by others.

On the other hand, e-mail messages are similar to telephone calls in many ways. Both enable virtually instant communication regardless of distance, both are transmitted electronically, usually through wires (sometimes the very same fiber-optic cables) over complex networks, and both require specialized electronic devices for their transmission. Although the widespread use of telephone systems has greatly impacted business communications, the Board has never found that employees have a general right to use their employer's telephone system for Section 7 communications.

In any event, regardless of the extent to which communication by e-mail systems is similar to or different from communication using other devices or systems, the Board observed “it is clear that use of the Employer's e-mail system has not eliminated face-to-face communication among the Employer's employees or reduced such communication to an insignificant level. Indeed, there is no contention in this case that the Employer's employees rarely or never see each other in person or that they communicate with each other solely by electronic means.” Consequently, the Board found “no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer's equipment or media for Section 7 communications.”

Accordingly, the Board held that the Employer could lawfully bar employees' non-work related use of its e-mail system, unless the Employer acts in a manner that discriminates against Section 7 activity. As the CSP on its face did not discriminate against Section 7 activity, the Board found that The Register-Guard did not violate Section 8(a)(1) by maintaining the CSP.

NLRB Modifies Law on Discriminatory Enforcement of Solicitation Policies
The judge found that the Employer violated Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit Prozanski's union-related e-mails while allowing other non-work related e-mails. On appeal, the Board affirmed the violation as to Prozanski's May 4 e-mail, but reversed and dismissed as to her August e-mails. In doing so, the Board modified NLRB law concerning discriminatory enforcement of such policies:

We find that . . . in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees. In either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.

According to the NLRB, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis:

. . . an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines. For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Board therefore held that “unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status, and we shall apply this view in the present case and in future cases. Accordingly, in determining whether the Employer discriminatorily enforced the CSP, we must examine the types of e-mails allowed by the Employer and ask whether they show discrimination along Section 7 lines.”

Prozanski's August 14 e-mail urged all employees to wear green to support the Union. Her August 18 e-mail urged employees to participate in the Union's entry in a local parade. Both messages called for employees to take action in support of the Union. The evidence showed that the Employer tolerated personal employee e-mail messages concerning social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or other similar personal items.

Notably, however, there was no evidence that The Register-Guard permitted employees to use e-mail to solicit other employees to support any group or organization. Thus, the Employer's enforcement of the CSP with respect to the August 14 and 18 e-mails did not discriminate along Section 7 lines, and therefore did not violate Section 8(a)(1).

Prozanski's May 4 e-mail, however, was not a solicitation. It did not call for action; it simply clarified the facts surrounding the Union's rally the day before. As noted above, the Employer permitted a variety of non-work related e-mails other than solicitations. Indeed, the CSP itself prohibited only "non-job-related solicitations," not all "non-job-related communications." The only difference between Prozanski's May e-mail and the e-mails permitted by the Employer is that Prozanski's e-mail was union-related. Accordingly, the Board found that the Employer's enforcement of the CSP with respect to the May 4 e-mail discriminated along Section 7 lines and therefore violated Section 8(a)(1).

The Board also agreed with the judge that the May 5 warning to Prozanski violated Section 8(a)(3) and (1). The May 5 warning stated that Prozanski "used the company's e-mail system expressly for the purpose of conducting Guild business" and that this violated the CSP. Thus, it is clear from the warning itself that The Register-Guard disciplined Prozanski for sending a union-related e-mail. “The issue is whether Prozanski lost the protection of the Act by using the Employer's e-mail system to send the message. With respect to the May 4 e-mail, she did not.” As explained above, although there is no Section 7 right to use an employer's e-mail system, there is a Section 7 right to be free from discriminatory treatment. The Register-Guard acted discriminatorily in applying the CSP to Prozanski's May 4 e-mail. Accordingly, the May 5 warning to Prozanski for sending that e-mail violated Section 8(a)(3) and (1).

However, the Board reversed the judge and dismissed the allegation that the August 22 warning violated Section 8(a)(3) and (1). That warning was issued in response to Prozanski's August 14 and 18 e-mails. The Board found above that the Employer's application of the CSP to prohibit those e-mails did not discriminate along Section 7 lines. Prozanski's conduct was therefore unprotected, and the August 22 discipline was lawful.

Conclusion
This case confirms the important right employers have to prohibit the use of e-mail systems for certain union-related activities, if the policy is drafted carefully and enforced on a nondiscriminatory basis. Attorneys in the Arent Fox Labor & Employment Law Group have substantial experience advising employers on non-solicitation and non-distribution rules and other issues that arise during organizing campaigns and in unionized workforces. If you have any questions about any of these issues, please feel free to contact us.

For more information, please contact

Michael L. Stevens
stevens.michael@arentfox.com
202.857.6382