On December 16, 2007, the NLRB clarified its position regarding employer restrictions on employee e-mail use. The decision in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70, is significant for two reasons. First, the decision holds that employees do not have a protected right to use employer e-mail systems for solicitations or communications regarding union-related topics. Second, it applies a new standard for determining when employers discriminatorily enforce e-mail policies and, thus, violate the NLRA.

The case itself arose from Guard Publishing’s decision to issue written warnings to an employee who used the company’s e-mail system to promote an upcoming union rally and to encourage employees to wear green in support of the union’s position in contract negotiations. Guard Publishing based the discipline on its written e-mail policy, which prohibited employees from using company e-mail for any “non-job-related solicitations” but, significantly, did not ban all personal e-mail from the company’s system.

In 3-2 decision, a majority of the NLRB ruled that employees do not have an inherent right to use company e-mail systems to communicate with one another on topics protected by the NLRA and that Guard Publishing’s policy of prohibiting use of its e-mail system for “non-job-related solicitations” was lawful. Further, although it found that Guard Publishing allowed non-work-related employee e-mails, the majority of the NLRB found that this, in itself, did not amount to discriminatory enforcement of the e-mail policy. In particular, the NLRB found no evidence that Guard Publishing had ever permitted e-mails, such as the ones at issue in the case, that urged support for groups or organizations. In support of its new standard for identifying discriminatory enforcement, the majority explained that “discrimination means unequal treatment of equals.” Because there was no evidence of an employee using Guard Publishing’s e-mail system to solicit for a non-union group without facing discipline, the majority found that Guard Publishing’s enforcement of its policy in this instance was not discriminatory.

The two dissenting NLRB members criticized the Guard Publishing decision for failing to adapt NLRA standards to the changing patterns of industrial life — “here, the explosion of electronic mail as a primary means of workplace communication.” They also expressed concern that the new standard for discriminatory enforcement of policies “allows the employer virtually unlimited discretion to exclude Section 7 communications [from permissible activities under the policy], so long as the employer couches [the exclusion] in facially neutral terms.”

One thing is clear as a result of the Guard Publishing decision: All employers – whether unionized or not – should review their e-mail policies and, if such language is not already included in the policy, consider adding a provision prohibiting employees from using company e-mail systems for non-job-related solicitations. Unionized employers should be mindful that, in another recent decision, California Newspapers Partnership d/b/a ANG Newspapers, 350 NLRB No. 89 (2007), the NLRB ruled that the employer’s e-mail policy was a mandatory subject of bargaining. Therefore, a unionized employer may be required to bargain with a union over any proposed changes to its policy.

The Guard Publishing decision may well be used by organized labor as another call to arms in response to a series of pro-employer, 3-2 decisions issued this year by the three Republican members of the Board. Given the prevalence of company e-mail systems as a means for employee communications and the challenges that unions face if this tool is limited, this topic is sure to surface again and again. Stay tuned!