NLRB Holds E-mail Policy Does Not Violate National Labor Relations Act

The Guard Publishing Company d/b/a The Register-Guard, Eugene Newspaper Guild

By René P. Milam

On Dec. 16, 2007, the National Labor Relations Board determined that the Register-Guard did not violate Section 8 of the National Labor Relations Act by enforcing an e-mail policy prohibiting employees from using the newspaper’s e-mail system for “non-job-related solicitations”.  The Register-Guard’s policy, implemented in October 1996, specifically banned the use of the newspaper’s communications systems and equipment for proselytizing commercial ventures, religious or political causes, outside organizations or any other non-job-related solicitations.

In May and August 2000, the Union’s president, Suzi Prozanski, received two written warnings for sending three e-mails to employees at their Register-Guard e-mail addresses.  The first e-mail, sent in May, attempted to clarify the facts surrounding the newspaper’s call to police about possible anarchists attending a Union rally.  Prozanski received a written warning on May 5 for violating the policy allegedly by using e-mail “to conduct Guild business”.  She received a second written warning on August 22 for two e-mails sent on August 14 and 18 from a computer in the Union’s office.  The August 14 e-mail asked employees to wear green to support the Union’s position in upcoming negotiations with the newspaper.  The August 18 e-mail asked employees to participate in the Guild’s entry in an upcoming town parade. 

The Union contended that the newspaper was imposing a discriminatory restriction on the e-mail communications since it already permitted employees to use the e-mail system  to communicate with each other on non-business matters generally.  It claimed that this case implicates the employer’s management interest, not property interests.  The Register-Guard, on the other hand, argued that the correct comparison is not between personal e-mails and union-related e-mails, but rather union-related e-mails and solicitations by non-union outside organizations or groups.  It argued that its enforcement is not discriminatory since it has not permitted outside groups or organizations to use the e-mail system to sell products, distribute propaganda or induce group action.

The Administrative Law Judge determined that the Register-Guard did not violate the Act by maintaining the e-mail policy, but did violate the statute by discriminatorily enforcing the policy to prohibit union-related e-mails while permitting a variety of other nonwork-related e-mails.  The record showed that the newspaper permitted e-mails such as jokes, baby announcements, party invitations, offers of sports tickets, or requests for services such as dog walking.  The Board agreed with the ALJ that the Register-Guard did not violate the Act by maintaining the policy.  However, it reversed the ALJ and dismissed the allegations that the newspaper’s application of the policy to Prozanski’s August 14 and 18 e-mails was discriminatory.  The Board reasoned that the newspaper’s policy does not regulate traditional face-to-face solicitation, which the Supreme Court had protected in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).  Here, it noted the employees are seeking the use of the employer’s communications equipment to engage in additional forms of communication beyond those in Republic Aviation.  It also noted that the employees, under Board precedent, 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”.  Rejecting the Union’s argument, the Board further noted that being rightfully on an employer’s premises does not confer employees with any additional right to use the employer’s equipment for Section 7 purposes, regardless of whether the employees are authorized to use that equipment for work purposes.  The Board adopted the principle that unlawful discrimination consist of disparate treatment of activities or communications of a similar character because of their union –protected status.  Thus, for example, an employer clearly would violate the Act if it permitted employee to use e-mail to solicit for one union but not another.

The Board, however, affirmed the violation as to Prozanski’s May 4 e-mail since it was not a solicitation and did not call for action.  It simply clarified the facts surrounding the Union’s rally the day before.
The Guard Publishing Company d/b/a The Register-Guard and  Eugene Newspaper Guild, CWA Local 37194, Cases 36-CA-8743-1, 36-ca-8849-1, 36-ca 8789-1, and 36-CA-8842-1 (Dec. 16, 2007)

First Published:
January 4, 2008