April 13, 2007
Author: Frank Chernak and Thomas D.Rethage
Organization: Ballard Spahr LLP
The U.S. Court of Appeals for the Fourth Circuit recently upheld an order of the National Labor Relations Board ("Board"), finding that an employer’s uneven enforcement of its business only e-mail policy violated the National Labor Relations Act (NLRA). Media Gen. Operations Inc., d/b/a Richmond Times-Dispatch v. NLRB, 4th Cir., No. 06-1023 (unpublished opinion 3/15/07).
Media General Operations d/b/a Richmond Times-Dispatch ("Media General") operates the Richmond Times-Dispatch, a daily newspaper. The Richmond Times-Dispatch’s reporters and other newsroom employees are unionized and represented by the Richmond Newspapers Professional Association. Media General had an e-mail policy that limited use of its e-mail system to business purposes only. The policy stated "[t]he e-mail system is provided to employees at Company expense to assist them in carrying out the Company’s business."
Although Media General’s policy prohibited all non-business related use of its e-mail system, in practice Media General permitted a wide variety of messages to be transmitted over its e-mail system. The Fourth Circuit found that Media General allowed employees to send e-mails regarding, among other things, charitable events, personal matters, and even union business. Media General did not enforce its business only e-mail policy, and previously it disciplined only two employees for improper use of the e-mail system when they had transmitted pornography.
Media General attempted to change its position regarding enforcement of its e-mail policy. It informed the union that it would not permit use of its e-mail system to conduct union business and threatened disciplinary action against those union employees who sent e-mails regarding union matters. The Fourth Circuit, as the Board had done below, noted that generally an employer may not interfere with its employees’ ability to unionize or conduct union business and that this prohibition extends to interference with employees’ ability to communicate about union matters. The court held that Media General’s attempt to selectively enforce its e-mail policy against only union related messages was illegal. The court stated: "[r]estriction of the union’s access to this communication channel, while others were allowed unfettered access, is an unfair labor practice that is prohibited by the NLRA."
Like traditional solicitation and distribution cases, this case applies the principles of uneven enforcement to e-mail. Adopting a business only policy for e-mail is the first step. Even-handed enforcement of the policy is critical to avoiding an unfair labor practice charge.
The question regarding the permissibility of business only e-mail policies in general is pending before the Board in Guard Publishing Co. d/b/a The Register-Guard, N.L.R.B. No. 36-CA-8743-1. On March 27, 2007, the Board heard oral argument in this case, involving another newspaper company and a business only e-mail policy. The Administrative Law Judge ("ALJ") had held that discriminatory application of a limited business only e-mail policy to union related matters and not other non-business matters violated the NLRA. However, the ALJ had determined that an employer’s e-mail policy restricting use of the company’s e-mail system to business purposes only, and prohibiting all non-business uses, was not facially overbroad and was not illegal if evenly enforced.
The Board took review of the ALJ’s decision and invited oral argument on the issue of an employer’s prerogative to control use of its e-mail system. The Board is weighing this prerogative against employees’ rights to communicate with one another under the NLRA. The Board is expected to render a decision that will settle a number of questions related to workplace electronic communications, including: whether Board precedent for solicitation and/or distribution policies should be applied to questions regarding e-mail policies; whether employees have a right to communicate regarding union matters using their employer’s e-mail system; whether employers have the authority to limit use of their e-mail systems, and if so, in what fashion; and whether changes in an employer’s e-mail system should constitute a mandatory subject of bargaining.
As demonstrated by this list of unresolved questions, the Board’s decision in the Guard Publishing Co. case could impose new limitations on employer policies governing workplace electronic communications. The Labor, Employment & Immigration Group at Ballard Spahr will continue to monitor these developments and is prepared to assist you in drafting, reviewing or updating your policies.
Copyright © 2007 by Ballard Spahr Andrews & Ingersoll, LLP.
(No claim to original U.S. government material.)