Employer E-Mail Policies and the National Labor Relations Act: D.C. Circuit Bounces Register-Guard Back to the Obama Board on Discriminatory Enforcement Issue

Article excerpt

I. Introduction

An employee sends three e-mails to her co-workers with messages related to work and the local union. Some of the messages seek employee support for the union. Her employer warns her that she is violating the company's communications systems policy, which prohibits non-job related solicitations. At the same time, the employer allowed all types of non-job related and personal e-mails, including some which solicited responses, to circulate without warning or discipline. Is the employer's policy and its manner of enforcement lawful? Does the employer's policy unfairly restrict employee rights? Is the employer's selective enforcement of its policy discriminatory?

This paper considers the legality of company policies that restrict employee communication on employer e-mail systems, where the activity is protected under section 7 of the National Labor Relations Act (NLRA).1 Section 7 protects employee communications, whether employees are represented by a union or not.2 These important employee rights include "the right to selforganization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities."3 The "other concerted activities" language in the latter part of section 7 permits employees to discuss matters related to wages, hours and working conditions, as well as other matters for their mutual aid or protection, such as items related to safety, wrongdoing, or the fairness of discipline. The mutual aid or protection part of section 7 requires that the employee is acting in concert for the benefit of other employees and not just for his or her own benefit.4 This paper focuses on the Register-Guard case which involved an organized group of employees and an employer communications systems policy that restricted use of workplace e-mail in a manner that interfered with section 7 rights, highlighting the D. C. circuit court's recent partial reversal and remand of the National Labor Relations Board's decision.5

II. Facts in Register-Guard

Concerned about use of its IT infrastructure, as well as security and liability, in 1996 the Register-Guard updated its Communications Systems Policy (CSP) which provided in relevant part: "Company communication systems and the equipment used to operate the communication systems are owned by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."6 As the D. C. circuit court noted, the definition of "solicit" is "[t]o try to obtain by entreaty, persuasion, or formal application," and to "proselytize" is to attempt "[t]o convert from one faith or belief to another."7 Notably, the Register- Guard did not explicitly restrict non-work related communications, as opposed to non-job-related solicitations and proselytizing. Despite the CSP's mention that the communication systems were "to assist in conducting the business," the company allowed countless non-business e-mails to circulate in contravention of the policy.8

These included personal missives, as well as mass solicitations concerning the sale of tickets, social invitations, dog walking services and so forth. Notwithstanding these persistent breaches of the CSP at every level throughout the organization, there were no warnings, reprimands or other negative outcomes for these mailings.9 This pattern changed abruptly in 2000, after an employee who was also the local union's president, Ms. Suzi Prozanski, sent a union-related e-mail while at work, and later sent two other e-mails while off-site, all to addresses hosted on the employer's e-mail system.10 The company disciplined Ms. …