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Bush's NLRB Legacy: #2 of 12
January 03, 2008 by Ross Runkel at LawMemo
Employee use of employer's email: no-solicitation rules and a definition of "discrimination"
#2 in a series of 12 significant actions by the Bush Board.
The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007) (3-2).
The employer had a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations." Employees used email regularly for work-related matters. Employees also used email to send and receive personal messages such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. However, there is no evidence that the employees used email to solicit support for or participation in any outside cause or organization other than the United Way, for which the employer conducted a periodic charitable campaign.
Holding (1):
An employer does not violate the National Labor Relations Act (NLRA) by maintaining a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations."
This is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.
Holding (2):
The employer did not unlawfully "discriminate" within the meaning of the National Labor Relations Act. The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and "group" or "organizational" postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court's analysis, "rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals." The majority overruled the Board's decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.
My view:
The first holding (allowing a no-use rule) is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.
The second holding (the definition of "discrimination") is a major new policy decision. The majority of the Board adopted a definition that has never been adopted by the Board in the past, and has been adopted by only one of the federal Circuit Courts. This will allow employers much greater flexibility to ban the use of email, (and phone, copy machine, bulletin board) for organizing purposes while allowing employees to use it for other non-business purposes.
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