Labor & Employment Law

National Labor Relations Board Restricts Union Use of E-mail

By Michael Fitzgibbon

The New York Times reports that the National Labor Relations Board has "ruled that employers have the right to prohibit workers from using the company?s e-mail system to send out union-related messages, a decision that could hamper communications between labor unions and their membership." (see Labor Board Restricts Union Use of E-Mail).  The case is The Guard Publishing Company and the NLRB considered a number of important issues including whether:

1. The employer violated the Act by maintaining a policy prohibiting the use of e-mail for all ?non-job-related solicitations.?
2. The Employer violated the Act by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails and by disciplining an employee for sending union-related emails.
3. The Employer violated the Act by insisting on an allegedly illegal bargaining proposal that would prohibit the use of e-mail for ?union business.?

With respect to issue #1, the NLRB concluded that "employees have no statutory right to use the Respondent?s e-mail system for Section 7 purposes. We therefore find that the Respondent?s policy prohibiting employee use of the system for ?non-job-related solicitations? did not violate Section 8(a)(1)."  In reaching that conclusion, the NLRB referred to and relied upon a long-line of cases involving the use of company equipment and the "basic property right" that allows the employer to "regulate and restrict employee use of company property."

The majority addressed the "balancing of interest" approach relied upon by their dissenting colleagues and rejected it.  Of note is that the "balancing of interests" is an approach that has found a great deal of support in Canada with respect to a variety of labour issues such as, for example, surveillance.  A number of arbitrators have recently rejected this approach.  In any event, presumably, before you can get to a balancing of interests, it must be found that there exist rights on both sides.  The majority of the NLRB found that the employees had no right under the Act to use the employer's email system for section 7 purposes. 

Not surprisingly, this decision has been attacked including by the AFL-CIO.   In addition, Workplace Prof Blog has a post in which it describes the majority's analysis as being "weak". 

Full post as published by Thoughts from a Management Lawyer on December 28, 2007 (boomark / email).