Monday, December 24, 2007

NLRB rewrites employee solicitation rules

It is no secret that employers often use non-solicitation policies as a lawful means to limit union activities on company time and property. Last week, the NLRB delivered an early Christmas gift to employers. Register-Guard, decided 3-2 by the Board, signaled a strong victory for an employer's right to control its computer and e-mail system, and at the same time severely restricted an employee's ability to solicit using company property.

Register-Guard is a unionized newspaper publisher. In 1996, it began installing a new computer system. Around the same time it also implemented a new Communications Systems Policy ("CSM"), which governed employees' use of its communications systems, including e-mail. The policy stated, in relevant part:

Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations (emphasis added).

Despite the policy, the company allowed its employees to send and receive personal e-mails, such as such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. However, it never allowed solicitations regarding any outside agency other than the United Way. The employer gave two warnings to an employee who sent three union-related e-mails, which lead to the charge that the employer was discriminatorily enforcing the policy.

In ruling that the policy, on its face, did not violate the NLRA, the Board relied upon an employer's legitimate business interest in its "basic property right to regulate and restrict employee use of company property," including its computer system. The Board saw no distinction between a traditionally bulletin board and an e-mail system:

[T]he Respondent's CSP does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent's workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas.... What the employees seek here is use of the Respondent's communications equipment to engage in additional forms of communication.... "Section 7 of the Act protects organizational rights ... rather than particular means by which employees may seek to communicate."

A solicitation or other communication policy can lawfully bar employees' non-work related use of an employer-owned e-mail system or other property, unless, on its face, it discriminated against employees' exercise of Section 7 rights. Thus, a policy that prohibits employee use of an e-mail system for "non-job-related solicitations" does not violate the NLRA.

Along the same lines, the Board found that "discrimination" in the context of rules limiting employee solicitations means drawing a specific distinction along Section 7 lines. In the Board's words:

Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.

This case concerned two different sets of e-mails. In the first, an employee called employees to take action in support of the union (such as wearing certain clothing and participating in a parade). While the employer tolerated personal employee e-mails (baby announcements, etc.), there was no evidence that the employer permitted employees to use e-mail to solicit for specific groups or causes. Thus, disciplining the employee for this set of e-mails did not discriminate along Section 7 lines, because the CSP did not permit any group or cause related solicitations. The second set of e-mails, however, presented a different problem. Those were not a solicitation or some call for collection action. Instead, they merely clarified the facts surrounding a union rally. Because the CSP only prohibited non-work-related "solicitations," and because the company permitted a wide range of non-work-related e-mails, disciplining the employee for an e-mail that disseminated information about the Union (as opposed to soliciting some action on its behalf) did discrimination along Section 7 lines and therefore violated the NLRA.

For employers, non-solicitation policies are always tricky. Now, the Board has given employers broad latitude to draft and enforce such policies, even as to e-mail communications, to bar all non-work-related solicitations. Further, enforcement is only a problem if it draws a clear line between Section 7 activities. While future Board and Court decisions will further flush out these standards, for now it is safe to say that non-solicitation and computer use policies will have to be reviewed, rewritten, and most likely broadened in light of this case and its new discrimination standards.

(Hat tip to the Pennsylvania Employment Law Blog).