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NLRB To Hear Oral Arguments on E-Mail Use by Employees

For the first time in more than six years, the National Labor Relations Board will hear oral arguments on a case pending before it. On Tuesday, March 27, 2007, the Board will hear arguments in The Guard Publishing Company, d/b/a The Register-Guard, Cases 36-CA-8743-1, et al. The issue for the Board is whether or not employees have the right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters. In this case, the company maintained a policy prohibiting the use of e-mail to “solicit or proselytize” for commercial, religious, political, or other solicitations. After the policy was established, the company disciplined an employee for sending e-mails to her co-workers about a pro-union rally. The Board will hear arguments and evaluate whether the Company’s policy is overly broad and inhibits the rights of employees to discuss their wages, hours, and working conditions as permitted under Section 7 of the Act. The Board has previously held that in certain circumstances, the sending of an e-mail is not protected. The Board ruled in 2003 that an employee who sent an e-mail to her co-workers about anthrax, in violation of a zero-tolerance policy on anthrax e-mails, could be terminated. Sprint/United Management Co., 339 NLRB No. 127 (2003).