January 7, 2008
No. 2008-1

In a long-awaited decision, the National Labor Relations Board has ruled that employers have the right to prohibit workers from using the company’s e-mail system to send out union-related messages. This ruling is important to both union and non-union employers.

In its 3-to-2 decision, the NLRB held that employers may prohibit union-related e-mail so long as they have a policy barring employees from sending e-mail for “non-job-related solicitations” for outside organizations. The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007).

The ruling involved the Eugene Register-Guard, a newspaper in Eugene, Oregon. In 2000, a newspaper employee who was president of the Newspaper Guild’s bargaining unit sent a series of e-mail messages about marching in a town parade and urging employees to wear green to show support for the union in contract negotiations. The employer issued written warnings to the union president for unauthorized use of company e-mail.

The Register-Guard’s written policy prohibited the use of e-mail for “non-job-related solicitations.” The evidence showed that, like many employers, the Register-Guard allowed a number of non-work-related employee e-mails, but there was no evidence that it permitted e-mails urging support for groups or organizations.

The Board’s decision settles uncertainty on two points.

First, the Board held that, “absent discrimination,” employees have no right under the National Labor Relations Act to use an employer’s equipment or media for union-related communications.

Second, with regard to the claim that the Register-Guard discriminated in its enforcement of its rule, the Board majority distinguished between personal non-work-related postings, like for-sale notices and wedding announcements, and group or organizational postings like union materials. The Board decided that employers can allow workers to use e-mail for personal communications while barring them from organizational-related communications. Since the Register-Guard had never permitted e-mails to solicit support for a group or organization, the Board found it did not unlawfully discriminate in applying its rule.

Our view:

This decision is a welcome one for employers. Companies now have a green light to prohibit union-related e-mail as part of an overall non-solicitation policy. Every employer should consider including language prohibiting “non-job-related solicitations for or relating to an organization or group” in their e-mail/computer use policies and make sure that the rules are enforced consistently.

If you have any questions, please contact us.