In December 2007, the National Labor Relations Board (NLRB) recognized that an employer has the right to prohibit employees from using its email system to solicit other employees to join or support a union, even while permitting employees to use the company's email for other non-business related reasons. In The Guard Publishing Company d/b/a The Register Guard,( n1) a decidedly split NLRB issued a 3-2 decision establishing that employers have the right to ban "non-job related solicitations" sent by employees on the company's email system. This decision was a remarkable shift from Board precedent involving solicitation policies in general. That is, the board held that, with regard to email communication, employers may issue a blanket restriction against use for union-related purposes, even when the employer permits employees to use its email system for other non-job related purposes.
The Law Before Register Guard
The law regarding a union's access in the workplace for solicitation purposes had been well settled for several decades.( n2) Employees have the right under section 7 of the National Labor Relations Act (NLRA) to engage in union activities and to join, assist, or support labor organizations.( n3) Included among these section 7 rights is the right ( 1) to solicit fellow employees to join or support the union; and ( 2) to communicate the union's message through words and literature. Over the years, the NLRB has established parameters as to the times and locations an employer can permissibly prohibit employees from engaging in solicitation and/or distribution of union literature.( n4)
Generally, employees are free to solicit on behalf of a union during their nonwork time, such as before and after their working hours, on break times (whether paid or unpaid), and during meal periods.( n5) While the occasions during which union solicitation can be prohibited are fairly straightforward under NLRB precedent, the non-discriminatory application of the employer's no-solicitation rules has proven extraordinarily difficult to achieve.
Many, if not most employers tolerate some level of solicitation during working time. For example, employees often solicit coworkers to purchase Girl Scout cookies, wrapping paper, raffle tickets, or other similar fund-raising. According to NLRB precedent, if an employer has failed to consistently and uniformly enforce its no-solicitation policy against non-union related solicitations, the employer may not, in turn, enforce its policy when employees are soliciting on behalf of the union during working time.( n6)
When a union-organizing campaign occurs, the union can quickly determine if the employer has not uniformly and consistently enforced it no-solicitation policy. Assuming it discovers that the no-solicitation policy had not been enforced evenly, the union may encourage pro-union employees to violate the employer's no-solicitation policy by soliciting company workers during working time. If the company issues discipline against the employee for violation of its no-solicitation policy, the union may then file unfair labor practice charges against the company to ( 1) chill supervisory resistance to the organizing effort; and ( 2) create valid grounds for filing objections to the election if the union loses. As such, NLRB law on solicitation policies prior to Register Guard gave employers the difficult choice of being ultra-diligent in enforcing its policy or tolerating union solicitations by employees during working time.
Register Guard Gives Employers Control over Their Email Systems
In Register Guard, the NLRB majority confirmed two important holdings. The first was that employees have no statutory right to use an employer's email system for the purpose of union-organizing. In addition, an employer may legally prohibit employees from using the company's email for non-job related solicitations, including union solicitations, even if it permits other non-job related use by employees of its email system.( n7)
This conclusion represents a vast departure from long-established NLRB precedent. Prior to Register Guard, the NLRB's analysis regarding whether an employer discriminatorily applied its no-solicitation policy boiled down to whether the employer permitted or tolerated any non-job related solicitation during working time. If so, then, according to the NLRB, it would be discriminatory to enforce its policy when employees are soliciting on behalf of a union during working time. The NLRB uses the same analysis in evaluating whether an employer's bulletin board policy is discriminatorily applied.( n8) If the company permits non-job-related postings such as automobiles for sale or apartments for rent, it would be unlawful to prohibit employees from placing union solicitation postings on the bulletin board.( n9)
In Register Guard, the NLRB adopted the reasoning of two decisions issued by the U.S. Court of Appeals for the Seventh Circuit, in which the NLRB unsuccessfully argued discriminatory application of the employers' bulletin board policies.( n10) In Guardian Industries and Fleming Co., the Seventh Circuit recognized that, although an employer may not discriminate against section 7 activity, the concept of discrimination involves the unequal treatment of equals.( n11) Because the employers involved did not permit employees to post notices of any organizational meetings, they did not discriminate when they took down notices of union meetings that had been posted by employees. According to the Seventh Circuit, however, posting for-sale notices or other personal item notices was not equal to posting meeting announcements.( n12) Therefore, simply permitting one category of posting while prohibiting another may not be tantamount to discrimination if equals were not involved.
In clarifying the new discrimination standard, the NLRB in Register Guard explained that if an employer permitted employees to use email to solicit for one particular union but not another, or if it permitted solicitation by anti-union employees, but not pro-union employees, the employer clearly would violate the NLRA. According to the NLRB, an employer is not prohibited from drawing the line on prohibited conduct based upon a non-section-7 basis. In fact, an employer may draw a line between charitable and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitation 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.( n13)
The NLRB explained that in these examples, simply because the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along section 7 lines. For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. According to Register Guard, that would be perfectly legal.
The Practical Impact of Register Guard and a Word of Caution
The impact of Register Guard can and will be dramatic. It allows employers to prohibit a class of solicitations dealing with organizations and/or commercial sales of a product while permitting employees to use the company's email system and bulletin boards, and to otherwise engage in solicitations of a personal nature on working time without violating the law.
Register Guard was decided along political party lines, by a slim 3-2. The two dissenters held the opinion that denying employees' access to employer email systems for union solicitation, while permitting access for other types of messages, undermines the employer's business justification and constitutes discrimination. With the recent change of administration in the White House, new NLRB appointees may share the view of dissenters and reverse the holding in Register Guard.
Footnotes
(n1.) 351 N.L.R.B. No. 70 (2007).
(n2.) See, e.g., Eaton Technologies, 322 N.L.R.B. 848, 853 (1997); Champion International Corp., 303 N.L.R.B. 102, 109 (1991).
(n3.) 29 U.S.C. § 157.
(n4.) See Sprint/United Mgmt. Co., 326 N.L.R.B. 397 (1998).
(n5.) St. Johns Hospital, 222 N.L.R.B. 1150 (1976), enfd. in part 557 E2d 1368 (10th Cir. 1977); Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615 (1962).
(n6.) See, e.g., Alle-Kiske Medical Center, 339 N.L.R.B. 361 (2008).
(n7.) 351 N.L.R.B. No. 70, slip op. at 9.
(n8.) See Eaton Technologies, 322 N.L.R.B. 848, 853 (1997).
(n9.) Id.
(n10.) See Guardian Industries, 313 N.L.R.B. 1275 (1994), enf. denied, 49 F.3d 317 (7th Cir. 1995), and Fleming Co., 336 N.L.R.B. 192 (2001), enf. denied, 349 E3d 968 (7th Cir. 2003).
(n11.) Guardian Industries, 49 E3d at 31; Fleming Co., 349 E3d at 975.
(n12.) Fleming Co., 349 E3d at 975.
(n13.) Register Guard, 351 N.L.R.B. No. 70, slip op. at 12.
