In its first decision addressing employee use of e-mail, the National Labor Relations Board ruled on Dec. 16 in The Register-Guard, 351 NLRB 70, that employees have no statutory right to use an employer's e-mail system for activity protected under § 7 of the National Labor Relations Act (NLRA), which protects an employee's right to support a union or to refrain from doing so.

In its ruling, the NLRB ruled that the employer's policy prohibiting use of its e-mail system for non-job-related solicitations did not violate the NLRA. The board also established a new standard for determining when an employer unlawfully discriminates against union-related activity in the workplace.

This decision is important for all private employers, union and non-union alike, because it affirms an employer's right to restrict use of its e-mail system and allows employers to permit personal and charitable communications and solicitations in the workplace while at the same time still barring such union-related activities.

What the policy said

At issue in the Register-Guard case was the employer's communications-systems policy, which stated that its communications equipment was not to be used "to solicit or proselytize for commercial ventures, religious or political causes, outside organizations or other non-job-related solicitations."

In the summer of 2000, the union president sent three e-mails to co-workers. One message was an attempt to clarify what she considered an inaccurate company communication and the other two urged union members to wear green on a certain date to support the union and to participate in the union's entry in a town parade.

The company issued two warnings to the union president for violating its policy - one for the first e-mail and one for the second and third. An administrative law judge held that both warnings violated the NLRA. The board then considered the case on appeal.

There were two issues before the board: (1) whether the company had the right to restrict the use of its e-mail system for § 7 activity and, if so, (2) whether the employer's enforcement of its policy unlawfully discriminated against union activity.

Regarding the first issue, citing prior case law, the NLRB stated that employers have a "basic property right" to "regulate and restrict employee use of company property" and that as a result, "employees have no statutory right to use (an employer's) e-mail system for Section 7 matters." In support of its ruling, the board cited a long line of cases holding that employers have the right to restrict employee use of other types of equipment and media, including bulletin boards, copy machines and telephones, as long as the restrictions are nondiscriminatory.

The board rejected the argument that employees should be free to use an employer's e-mail system for § 7 conduct because e-mail is the modern equivalent of face-to-face communication and is essentially a "gathering place" at work. The board noted that the employer's employees were still able to conduct face-to-face solicitation and that the NLRA law does not require that employees have access to the most convenient or most effective means of communications in the workplace.

Face time

However, language in the decision suggests that a different decision might result if face-to-face communications were not available among employees.

Regarding the second issue, the board established a new standard by ruling that the employer's enforcement of its policy was not discriminatory, even though some non-business-related e-mail was permitted. (Previously, the board had held that if an employer allows employees to discuss personal matters, such as sports scores or news, it could not prohibit discussion of union matters.)

The board expressed the new standard by stating that "unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other (NLRA)-protected status." In other words, the board stated, illegal discrimination is the "unequal treatment of equals."

"An employer may draw a line," the NLRB explained, "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 non-business-related use." The board stated that the fact that union solicitation would fall on the prohibited side of the rule would not violate the NLRA.

Applying the new standard, the board ruled that the first warning given to the union president for the e-mail clarifying the employer's communication violated the NLRA because it disciplined her for sending an e-mail that was akin to a personal communication between employees, which the employer allowed. The evidence showed that employees used e-mail to communicate about non-work-related personal matters (such as jokes, baby announcements, party invitations and offers of sports tickets or services such as dog walking).

However, the board ruled, the employer did not discriminate against the president by issuing the second warning for sending the two e-mails about wearing green and participating in the parade because they were not personal communications and were non-business-related solicitations, which the policy prohibited. There was no evidence that employees used e-mail to solicit support for outside causes or organizations (other than the annual United Way campaign).

As a result of the Register-Guard decision, employers may now distinguish not only in their equipment communications policies, but also in their solicitation policies, between charitable and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product, between invitations of a personal nature and invitations to support any group or organization, such as unions, political parties or religious groups, and between solicitations and mere personal conversations.

The ability to make such distinctions legally is a significant expansion of an employer's right to restrict union-related solicitations and communications while permitting similar non-union-related activities. Employers should review their policies and consider making permissible revisions.

James Grasso is a partner in Phillips Lytle's labor and employment group. He can be reached at jgrasso@phillipslytle.com.