NLRB Grants Use Of Company Email For Union Purposes

On July 26, 2011 the NLRB found that union representatives may have a right to correspond with employees on their corporately purchased email accounts to solicit union activity. The Guard Publishing Co., d/b/a The Register-Guard, 375 NLRB No. 27 (2011).

The Register-Guard is a newspaper in Eugene, Oregon. Some of its employees are represented by the Communications Workers of America, Local 37194. In August of 2000 its local president, and an employee, circulated two emails to the workforce. The first email was sent to employees from the president's union email account and to the employees' work email. It encouraged workers to wear green shirts in support of a union collective bargaining effort. The second email was also sent from the president's union account to employees' work accounts and encouraged the employees to participate in a community parade on behalf of the union. On August 22, 2000 the employer disciplined the union president for violating the company's communications systems policy which prohibited solicitations:

Communication 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.

The CWA filed unfair labor practice charges and the NLRB concluded that the local president was not discriminatorily disciplined for the August emails based upon a decision of the Seventh Circuit Court of Appeals. Register-Guard, 351 NLRB 1110 (2007). The Board reasoned that in disciplining the union president it was not treating solicitations to support union activity differently from solicitations to oppose union activity. As the Board recognized, "... an employer would violate Section 8(a)(1) by permitting employees to send antiunion emails while prohibiting prounion emails.... But it would not be unlawful discrimination for an employer to permit, for example, emailed solicitations for charitable organizations but not emailed solicitations for other kinds of organizations...." (citing, Fleming Cos. v. NLRB, 349 F.3d 968 (7th Cir. 2003). The CWA challenged this ruling in the D.C. Circuit Court of Appeals.)

On July 7, 2009 the D.C. Circuit Court of Appeals remanded the issue to the NLRB directing that it determine whether substantial evidence existed in the record to establish that the employer refused to permit employees from making solicitations of any nature. In essence, the D.C. Circuit rejected the standard established by the...