NLRB Restricts Union Emails at Work (1-8-2008)

In so ruling, the NLRB found that there was no unlawful discrimination, because the employer's policy barring union solicitations was consistent with, and part of, an overall neutral policy which prohibited solicitations on behalf of any outside organization, such as Avon.  Therefore, the rule applies even if the employer allows e-mails which are of a non-business, personal nature, such as for-sale notices and wedding announcements.

In the case decided, an employee had been disciplined for several e-mails, each of which had been sent to numerous employees.  In two of the e-mails, she expressly urged support for certain union activities.  In a third, she clarified certain details about the events surrounding a rally which had taken place, and signed off with, "Yours in solidarity."  The employer disciplined her for all three e-mails.  The Board found that the discipline for the first two e-mails was lawful and consistent with the company's policy against solicitous organizational e-mails.  However, the discipline for the last e-mail was found to be unlawful, in that the e-mail had been merely informational in nature, and did not serve as a solicitation advocating on behalf of the union.

Section 7 of the NLRA (codified at 29 U.S.C. § 157) gives employees the right to organize, and to be represented by a union.  In interpreting Section 7, courts have balanced these employee rights against employer interests in controlling its own personal property.  From this balancing act, weighing employee interests to organize against employer interests in controlling its personal property, has arisen the "traditional rule": employers may not prohibit union solicitations in face-to-face meetings during nonwork hours (such as breaks  or lunches), or the distribution of union literature during nonwork hours in nonwork areas (such as cafeterias, locker rooms, and other gathering areas).  However, employers can ban solicitation during working time and can ban distribution during working time and in working areas.

However, employers may restrict access to its telephone systems and bulletin boards and prohibit union solicitations through such media as long as they prohibit other non-business use.

This traditional rule does have a twist: while an employer, in controlling access to its property, can prohibit union solicitations, it can not do so in a way that discriminates against union activity.  A rule that specifically prohibits union solicitations on an employee bulletin board, but that allows use of the bulletin board for other, nonwork communications would be unlawful.

The issue at the heart of The Guard Publishing Company was how to classify e-mail systems.  The employee argued that e-mail has developed as a means of employee communication, on both work and nonwork matters, that it is akin to a "gathering place" such as a cafeteria.  The Board disagreed.  Having determined that e-mail systems are employer property, not different in material respects from bulletin boards and other personal property, and once satisfied that the employer rule was not discriminatory, it made its decision that the employer could ban union solicitation on the e-mail system.

Interestingly, although the ruling (1) was based in large part on the employer's policy which prohibited use of its e-mail systems to solicit "for commercial ventures, religious or political causes, [or] outside organizations," and (2) regarded the union as such an organization, the Board saw no fundamental inconsistency in the employer's having allowed one of its managers to e-mail solicitations on behalf of the United Way.  The NLRB explained that "allowing limited charitable solicitations does not necessarily require an employer to allow union solicitations."

COUNSEL TO MANAGEMENT:

Employers should work with their labor counsel to ensure that their no-solicitation policies provide them the best ability to prohibit union solicitations over email systems.  Remember, in this case one of the disciplinary actions for sending a union-related email was found to be unlawful.  Employers who wish to limit access to their email systems should implement policies that prohibit all non-work related communications over email and other computer systems (including instant messaging).  In the case, the employer could not prohibit the email clarifying the details, after the fact, of the union march, because the email did not solicit employees to take action for the union.  In contrast, the employer had consistently prohibited solicitations on behalf of non-charitable organizations, and could prohibit solicitations on behalf of the union under such a policy.  The key is to consistently prohibit all non-work related communications, and to enforce the prohibition consistently.

This is an area of law that is still under development, and employers should be highly cautious in implementing no-solicitation policies.   The NLRB has not been consistent on this point, and the decision was a close call.  Employers should consult with their labor counsel regarding the best strategy to control union access to information systems.

What follows is a sample policy on solicitation and distribution:

________               

SOLICITATION & DISTRIBUTION

It is (company)'s policy to prohibit solicitation and distribution on its premises by non-employees and to permit solicitation and distribution by employees only as outlined below.

1.  (company) limits solicitation and distribution on its premises because, when left unrestricted, such activities can interfere with the normal operations of the organization, can be detrimental to employee efficiency, can be annoying to customers and can pose a threat to security.

2. The Human Resources Manager is responsible for administering this policy and for enforcing its provisions.  Employees will be subject to disciplinary action for violations of this policy.

3.  Persons who are not employed by (company) are prohibited from soliciting funds or signatures, conducting membership drives, distributing literature or gifts, offering to sell merchandise or services, or engaging in any other solicitation or similar activity on Company premises.

4.  Employees are not permitted to engage in solicitation or distribution of literature for any group or organization, including charitable organizations, except in accordance with the following restrictions:

(a)        The sale of merchandise is permitted on Company premises only by written management approval;

(b)        Solicitation and distribution of literature are prohibited during the working time of either the employee making the solicitation or distribution, or the targeted employee.  The term "working time" does not include an employee's authorized lunch or rest periods or other time when the employee is not required to be working;

(c)        Distribution of literature is prohibited in work areas at all times;

(d)        The distribution of literature in such a manner as to cause litter in Company premises is prohibited; and

(e)        Off-duty employees are not allowed to enter work areas until their next scheduled work time.

5.  (company) maintains bulletin boards to communicate Company information to employees and to post notices required by law.  These bulletin boards are for the posting of Company information and notices, and only persons designated by the Company may place notices on, or take down material from, the bulletin boards.

6.  In some areas, bulletin boards may be provided for use by employees to post special announcements or other information of a personal, non-organizational nature which may be of interest to other employees, except when permitted to do so under applicable law.

7.  (company)'s e-mail and Internet systems are to be used for work purposes only.  Employees are not permitted to send or receive e-mails or instant messages, or communicate via Internet browser for any nonwork purposes, including but not limited to solicitation on behalf of any organization.