Can an employer restrict its employees from using e-mail for non-job-related solicitations, such as for union activity, if it also permits employees to use e-mail for other non-business purposes?
Unionized and non-unionized employers alike have faced this question all too often in recent years as they attempted to craft policies that are both practical and legally enforceable.
New guidance has come in the recent case of The Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007), in which the National Labor Relations Board suggests the answer to this question is “yes.”
Section 7 of the National Labor Relations Act gives employees (unionized or not) the right to engage in “protected, concerted activity” at the workplace – including soliciting co-workers to join a union and discussing their collective interests.
While employers can have policies limiting such solicitation at work, they cannot ban solicitation during an employee’s non-working time and in non-working areas, such as the cafeteria, and they cannot discriminate based on the purpose or nature of the solicitation.
For example, if the employer allows employees to solicit for the Girl Scouts, it has to allow them to solicit for a union as well.
With the advent of e-mail, however, the legal landscape became more complicated. The NLRB’s general counsel took the position that e-mail had become a “natural gathering place” for employees to communicate in the workplace.
If employees had an absolute legal right to talk about a union in the cafeteria, they arguably had the right to do so in cyberspace as well. If an employer regularly permitted employees to use e-mail for personal communications, the general counsel argued, prohibiting them from using e-mail for union-related solicitations would be unlawful discrimination.
Such arguments left employers in a quandary. Could they adopt a policy prohibiting employees from using company equipment for non work-related solicitation? And, if they did, would the NLRB prevent them from enforcing that policy if they allowed an occasional personal e-mail to get through?

Union-related e-mails

In the case before the NLRB, the Guard Publishing Company created a policy that employees could not use the company’s communication systems and equipment to solicit for “commercial venture, religious or political causes, outside organizations, or other non-job-related solicitations.”
In practice, however, employees were permitted to use e-mail for some non-job-related reasons, including party invitations, baby announcements and the like.
An employee, Suzi Prozanski, sent several e-mails to co-workers regarding union matters. One message, sent from her work station during a break, attempted to clarify what she believed were misstatements by Guard Publishing regarding union activities.
Prozanski sent a second e-mail to her co-workers at their Guard Publishing e-mail addresses, but this time did so from a computer in the union’s office, off the company’s premises. In the second e-mail, she asked her fellow employees to participate in the union’s entry in a local parade and to wear green in support of the union during negotiations with the company.
Guard Publishing disciplined Prozanski for both e-mails. She, in turn, claimed the company had unlawfully interfered with her NLRA Section 7 rights.

NLRB ruling

In its decision, the NLRB recognized that employees do not have a Section 7 right to use their employer’s equipment or media as long as the restrictions on use are non-discriminatory. The NLRB distinguished between the face-to-face solicitations taking place on company-owned property, such as in a cafeteria, and electronic solicitations taking place on a company-owned computer or a company-owned communication system.
Because Guard Publishing’s employees could (and did) frequently speak face-to-face and had no limitations on their ability to discuss union or other protected activity, the limit on e-mail use was not unlawful on its face.
This included Prozanski’s second e-mail, even though it was sent from a union computer off-site, because it was received by employees at their company e-mail addresses.
The NLRB also tackled the question of whether the policy had been enforced in a discriminatory manner.
Discrimination occurs, the NLRB said, when an employer treats differently “like” activities on the basis of Section 7 protected versus non-protected status. For example, it would be discriminatory for an employer to permit anti-union e-mails, but prohibit pro-union e-mails.
The NLRB found that Guard Publishing’s policy was not discriminatory because it compared two “unlike” types of communications – solicitations for outside organizations on the one hand, and personal solicitations on the other.
Despite its relationship to the workplace, in this context a union constituted an outside organization.
The NLRB provided employers with guidance for drafting a lawful ban on certain types of e-mail solicitations: “[A]n employer may draw a line 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. In each of these examples, the fact that union solicitation would fall on the prohibited side of some of these distinctions does not establish that the rule discriminates along Section 7 lines.”

Nuances

Even in this new framework, however, employers must still watch for nuances in how they enforce policies. The NLRB said Prozanski’s e-mail clarifying what she believed was a misstatement by Guard Publishing regarding union activity did not solicit support for the organization itself. The company should not have disciplined her for sending it, the Board said.
“The only difference between [that] e-mail and the e-mails permitted by [Guard Publishing] is that Prozanski’s e-mail is union related,” the NLRB explained.
That kind of distinction, according to the NLRB, is discriminatory and violates employees’ Section 7 rights.
There are some work settings – such as those with large numbers of telecommuters – where there is no cafeteria or other place where employees can gather in person to engage in Section 7 activity.
The NLRB noted there was no evidence that Guard Publishing employees rarely saw each other in person or that they communicated with each other solely by electronic means. Had the facts been different and verbal means of communication were not prevalent, the NLRB suggested, the policy could have been deemed to unlawfully restrict Section 7 rights.
Guard Publishing allows employers more freedom to prohibit employees from using company computer systems to solicit for outside organizations, while still permitting solicitations of a personal nature.
While this decision expands the scope of lawful limitations on e-mail use, it also requires employers to carefully define permitted and prohibited content; take care that the distinctions between the two are based on criteria other than protected Section 7 activity; and ensure that enforcement is done in a consistent, non-discriminatory manner.
Understanding the difference between “like” and “unlike” communications as well as the broader definition of an employer’s equipment, systems, or media will be essential to creating an enforceable policy on e-mail use.

Catherine E. Reuben is a partner with the Boston law firm of Robinson & Cole LLP, where she provides counseling, training, and litigation defense for employers in a wide variety of labor and employment matters. Ms. Reuben serves as co-chair of the Massachusetts Bar Association’s Labor and Employment Law Section. She can be reached at [email protected].

Rita B. Trivedi is an associate in Robinson & Cole’s Labor & Employment Section. She has worked on employment litigation matters including terminations, retaliation, and disability discrimination; evaluated employment policies and handbooks; and assisted unionized employers on matters concerning union relations, company restructuring, terminations, and grievances. Ms. Trivedi can be reached at [email protected].