Communicating a Message

In a decision that impacts both unionized and non-unionized employers, the National Labor Relations Board ruled late last year that employers who restrict employee use of their E-mail system to business-related purposes do not violate federal labor law.

The case involved an Oregon-based newspaper publisher, the Register Guard, which had a computer and information system in place since 1996, and provided computers and/or E-mail access to most of its 150 employees. Like many other employers, Register Guard adopted a communications systems policy (CSP) that specifically provided that “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.”

Although a violation of the CSP could lead to discipline up to and including termination, Register Guard did not regularly enforce the CSP against employees, and even managers, for sending E-mails over its system regarding parties, jokes, breaks, community events, sporting events, births, or solicitations for the United Way.

In 2001, the union challenged Register Guard’s CSP as unlawful under the National Labor Relations Act. The union argued that the communications system was a “work area,” and as such, Register Guard could only restrict employees’ use of it during “working time.” Register Guard, however, argued that its communications system was company property, like its bulletin boards, telephones, and televisions, and, thus, it had the right to limit employee use of it to business purposes.

The union also claimed that Register Guard discriminatorily enforced its CSP against union activity because it disciplined employees for sending union-related E-mails while it allowed employees to send other non-business-related E-mails without punishment.

The board concluded that Register Guard’s CSP was lawful because its communications system was company property and not a work area. The CSP also served another “legitimate business interest,” according to the board, in preserving server space, protecting against viruses, and avoiding liability for inappropriate E-mails. The board found that the CSP did not “entirely deprive” employees of their ability to exercise their rights under the act to communicate amongst themselves about the terms and conditions of their employment. Even if E-mail activity on that topic was restricted, employees retained the ability to engage in face-to-face communication.

Having found the terms of the CSP lawful, the board then considered whether Register Guard had discriminatorily enforced the CSP. In the past, the board has generally found discriminatory enforcement where, for example, an employer prohibited employees from using its property for union-related purposes but then allowed employees to use its property for non-work related purposes. A classic example of this would have been allowing employees to post personal notices on a bulletin board, such as a car for sale or a wedding announcement, but then prohibiting union-related postings on the same bulletin board.

In this case, however, the board abandoned that approach and decided that discrimination under the act exists only where an employer draws a distinction along union-related lines. The board explained its new discrimination rule as “unequal treatment among equals.” It further explained it as “disparate treatment of activities or communications of a similar character because of their union … status.” Some examples include:

• Permitting employees to use E-mail to solicit for one union but not another; or
• Permitting solicitation by anti-union employees but not by pro-union employees.

The board’s new approach to discrimination under the act may not outlast the terms of three members of the majority, and it may not even survive an appeal. Two board members dissented “in the strongest possible terms,” claiming that the majority overruled very settled law.

E-mail has become an indispensable communication tool in the American workplace because it is so quick and effective. With just a click of a button, you can contact someone, whether across the hall or across the country. For this very reason, it is a coveted way for unions to communicate with prospective and current members.

Unions are acutely aware that cyberspace is an effective medium with which to recruit and retain members.

This decision will be upsetting to unions, which will undoubtedly mobilize their resources to overturn it in the courts and in the political arena. For this reason, employers may want to think twice before changing their electronic communications policies to reflect this decision. Chances are this is not the last word on this issue.

Tim Murphy and Tim Cavazza are partners with the Springfield-based firm Skoler, Abbott & Presser, P.C.; (413) 737-4753;www.skoler-abbott.com