Many had anticipated a dramatic rejection of Register-Guard, the National Labor Relations Board's landmark December 2007 decision, which held that employees could not use their employer's e-mail system as a matter of right to engage in union-related activities or union solicitation (see our previous blog entry). Instead, on July 7, 2009, the D.C. Circuit let that decision stand, effectively holding that the newspaper in that case did not violate federal law by issuing a policy banning all solicitations, including union solicitations, from its corporate e-mail system.

The court nonetheless concluded that the newspaper had engaged in unfair labor practices in the way it applied the policy. The court found that one of the e-mails that resulted in discipline of the employee—who was also the union president—was union-related, but was not a solicitation. Consequently, the union president did not violate the newspaper’s electronic resources policy by sending it. The other two e-mails upon which the newspaper had relied to discipline the employee were solicitations that violated the company’s policy. However, the newspaper's lax enforcement of the policy vis-à-vis non-union-related messages and its after-the-fact justification for applying the policy to the employee's messages demonstrated unlawful discrimination against union activities. 

The employer's mistakes in Register-Guard were that (a) it did not enforce its policy against other non-business solicitations, even though the policy prohibited all "non-job-related solicitations;" and (b) it enforced the policy only when the solicitation in question was on behalf of a union.

Whether the Obama Board will continue to allow employers to ban union communications on their e-mail systems remains uncertain. Regardless, employers should consider the following:

• Employers can impose broad restrictions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with communications that might otherwise be protected by Section 7 of the National Labor Relations Act as long as the policy on its face does not discriminate against union activity.

• Employers can draft the policy in a manner that will capture union-related activities in addition to union solicitation.

• Employers should confirm that legitimate, non-discriminatory justifications exist for their line drawing, such as protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, preserving server space, and avoiding company liability for employees' inappropriate e-mail.

• Before disciplining an employee for violating the policy by engaging in union-related activity, confirm that the communication, in fact, violated the policy. Moreover, check that other employees who have engaged in similar conduct also have been disciplined.

• Implement procedures to ensure that the policy is enforced in a non-discriminatory manner.

This entry was authored by Laurent R. G. Badoux and Philip L. Gordon.

For additional analysis of this development, see Littler’s ASAP “The D.C. Circuit Reminds Employers of the Perils of Selectively Enforcing Their Solicitation and E-Mail Policies Against Union-Related Activities” by Laurent R.G. Badoux, Jennifer L. Mora and Kathryn E. Siegel.