Employees on Guard: Employer Policies Restrict NLRA-Protected Concerted Activities on E-Mail

Abstract

A newspaper company creates a workplace communications systems policy that prohibits use of its e-mail for non-job-related or outside solicitations and then disciplines an employee who sends several union-related e-mails to employees. The employer permits other personal uses of its e-mail system. In the last day of then Chairman Battista’s tenure at the National Labor Relations Board, a deeply divided Board ruled the employer has a right to regulate and restrict the use of its property. The dissent, authored by now Chairman Wilma Liebman, compared the majority’s perspective and the agency itself to ‘Rip Van Winkle’ because it overlooked the transforming effect of e-mail on the workplace. The United States Court of Appeals for the District of Columbia Circuit overturned the Board’s decision finding that the Register-Guard unlawfully disciplined a union steward for her e-mails when the newspaper discriminatorily enforced its no-solicitation rule. The article suggests how the NLRB should handle the Register-Guard case upon remand. The Board’s decision on employer e-mail policies affects the parameters of NLRA section 7 rights for all private sector employees, not just those represented by unions. This article assesses the legality of workplace communication systems policies that permit non-business uses of communications systems yet prohibit concerted activity and/or union-related communications.

Keywords: section 7, discrimination, email, e-mail, register-guard, board, national labor relations board, nlrb, concerted activity, union, employment, employee, employer, battista, liebman, communications systems

JEL Classification: J50, J51, J52, J53, J54, J58, J59, J70, J71, J78, J79