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Employer Friendly E-mail and Discrimination Rulings

In late 2007, the National Labor Relations Board (Board) issued yet another sharply divided and controversial opinion favoring employers. This opinion is likely to increase the pressure by labor groups to seek both the passage of the Employee Free Choice Act in 2008, as well as changes to the majority of the Board itself.

CASE HISTORY

The case, The Guard Publishing Company, d/b/a The Register Guard, (published December 24, 2007) began seven years ago at a newspaper in Eugene, Oregon when a union-represented employee began sending pro-union e-mails to her co-workers. The Board examined whether the newspaper violated the National Labor Relations Act when it disciplined the employee for sending the union-related e-mails. The newspaper argued that it did not permit e-mails urging support for any groups or organizations and that the e-mails at issue violated its policy. The policy stated, in relevant part:

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

The employee claimed that the employer had permitted other non-work related e-mails, and that the policy itself and its enforcement were unlawful under the National Labor Relations Act (the Act).

POLICIES RESTRICTING E-MAIL

The Board majority held that there is no statutory right to use an employer’s equipment for union activity. By analogy, the Board compared e-mail to employer owned telephones, copy machines, printers and bulletin boards, none of which employees may use for unionpurposes absent employer permission for other non-business purposes. Absent discriminatory enforcement of the rule, the Board held that such a policy does not violate the Act.

NEW DISCRIMINATION STANDARDS

The Board used the same case to redefine the standard for discriminatory enforcement of policies. Under the Board’s pre-existing case law, an employer that permits e-mail for non-work purposes may not prohibit communications related to wages, hours and working conditions – generally union related e-mail.

The Board overturned that precedent, explaining “[There is no evidence that the employer] allowed employees (or anyone else) to use e-mail to solicit support for or participation in any outside cause or organization other than the United Way, for which the Respondent conducted a periodic charitable campaign.”

The Board’s new standard provides that unlawful discrimination consists of disparate treatment of activities or communications of a similar character. In explaining its new policy, the Board noted that employers could have policies that permit charitable solicitations but bar non-charitable (personal and commercial) solicitations. Applying this policy to the case at hand, the Board held that the policy of the employer is lawful, the employee violated the policy,and the resulting discipline is permissible.

MINORITY OPINION

This employer friendly decision created significant controversy, even within the Board itself. The dissenters argued “Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace. In 2007, one cannot reasonably contend, as the majority does, that an email system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” The dissenters claimed that the opinion would allow employees to solicit on behalf of virtually anything except a union.

EMPLOYER TIPS

Given the Board’s new e-mail analysis, employers should strongly consider reviewing (and where necessary revising) their existing e-mail solicitation policies. This case allows employers to lawfully prohibit all commercial and non-job related solicitation in the workplace.