NLRB Grants Employers Broad Control on E-mail Use

January 13, 2009 by Beeson Tayer & Bodine

The Bush NLRB has ruled that employers may validly prohibit employees from using company e-mail systems for union and concerted-activity matters, as long as the prohibition does not discriminate against the exercise of such Section 7 activities. Register Guard, 351 NLRB No. 70 (2007).

The Board majority rejected the argument that employee use of company e-mail systems made available to employees for their work should be treated any differently than other company equipment or facilities, such as televisions, telephones, and bulletin boards. The Board has ruled in the past that employers may prohibit employees from using company equipment or facilities to exercise Section 7 rights, as long as the prohibition is general, and not directed at Section 7 activities. The majority disregarded the fact that employee use of an e-mail system for Section 7 communications imposes no cost on the employer and does not use up a limited resource, preventing others from using the system for work.

The Board majority also revised its standard for determining whether an employer has discriminated against Section 7 rights. In the past, an employer committed an unfair practice whenever it permitted use of company facilities, such as a bulletin board, for personal, non-work activities, but not for Section 7 activity. Reversing course in Register Guard, the Board applied a test for unlawful discrimination that requires “disparate treatment of activities or communications of similar character because of their union or other Section 7- protetected status.” Applying the “similar character” test, the majority noted that a rule could lawfully permit charitable solicitations but not non-charitable solicitations, and could permit solicitations to participate in social gatherings but not solicitations to support a group or organization.

It remains to be seen how this decision will be treated under the new administration.

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