The National Labor Relations Board (NLRB) ruled that employers do have "basic property right" to restrict the use of its email system by a union and that a union should not be able to use an employer's equipment to organize or communicate with employees. (Law.com) This ruling settles a long running dispute and affirms the position in the U.S. that it is the employer, not the employee, who controls the content of their email system. But, it may also suggest that employers review their email policies to make sure they are handled consistently.
This dispute put a union's basic right to organize workers against property rights. The unions argued that the use of email is widespread and that in many cases has augmented verbal communications. The issue of verbal communications is important. Over the years, NLRB gave greater protection to verbal communications than to written communications, such as a brochure or a leaflet.
However, the NLRB has also recognized that the National Labor Relations Act does have some limitations when it comes to union activities during working hours in the workplace. For example, it has been held that a union should not be able to use an employer's equipment to organize.
In this particular case, the employer, Guard Publishing had a general policy that prohibited any "nonjob-related solicitations" on company email. This was held to be perfectly legal. The union also argued that since the employer had allowed some personal or nonbusiness email solicitations, it had to allow union emails, or else it was enforcing its policy in a "discriminatory" manner. The board rejected this theory. This is how Law.com explains it:
The board recognized that an employer who allows limited personal email solicitations, but still prohibits union solicitations, has not engaged in discriminatory enforcement. The board limited the application of the discriminatory enforcement rule to the employer's treatment of email communications of a similar nature. For example, it stated that an employer may lawfully allow employees to send personal emails, listing personal items "for sale," or use email to solicit support for charitable organizations like the Red Cross, while still prohibiting union solicitations. The board reasoned that these communications were not similar, and therefore did not merit similar treatment.
On the other hand, the board cautioned that if union solicitations are prohibited, an employer cannot allow employees to use email to solicit for profit-making ventures, to organize meetings for "clubs" or private organizations, or to promote competing unions. To allow these types of email solicitations while prohibiting "union" emails would be discriminatory enforcement.
There are specific rules regarding union solicitations that cannot be generalized to normal email use. But, it would not be a stretch to imagine legal action where somebody complains that a general prohibition on the use of non-business email would be challenged if it is not uniformly enforced.
This suggests that employers should review their email policies to be more specific about what is allowed and what is not allowed. For example, banning "non-business" emails may be too broad in this day and age. Specifically allowing a reasonable number of personal messages, as explained above, may be prudent.
Subscribe by Email
