Few cases have sparked more controversy than the National Labor Relations Board’s ruling in Register Guard, 351 NLRB No. 70 (2007), discussed previously here.  In that case, the NLRB ruled that employers may ban union use of company email if they have a consistently enforced policy prohibiting “non-job-related solicitations.”

To help clarify its ruling, the NLRB has issued a memo detailing how it applied Register Guard in five recent cases.  Click here for the full text.  Here are the highlights:

Case #1:  A rule barring a union from sending email messages to managers outside its main facility was lawful.

The employer in this case allowed the union to use company email to communicate with employees at its facility.  The union then started sending messages to managers outside the facility.  The company demanded that the union stop but it refused.  The NLRB ruled in the employer’s favor, stating:  “We found the rule to be lawful because it concerned how the union was permitted to use the employer’s e-mail system and did not otherwise prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.”

Cases #2 and #3:  Non-job-related email rules must be consistently applied.

The employers in these cases had valid rules.  However, the evidence showed that they discriminatorily applied the rules against union solicitations.  The companies disciplined employees who sent union-related emails but allowed a plethora of personal solicitations and emails, including school fund-raisers, sales of various products, collections of money for needy families and a multitude of email jokes, chain letters and party invitations.

Case #4:  Non-job-related email rules can’t be “re-promulgated” for anti-union reasons or used to prohibit complaints about working conditions.

An employee sent numerous emails complaining about working conditions, including an anonymous email to the company’s board of directors.  In response, the company “re-promulgated” a rule banning personal email use and then fired the employee for participating in a “disruptive anonymous email scheme.”  The NLRB ruled that the re-promulgation and discharge were discriminatory, again pointing to a multitude of personal emails allowed by the company, including jokes, baby announcements and offers of tickets to sporting events.

Case #5:   Register Guard may not apply to unwritten rules or company bulletin boards.

The employer had no written non-solicitation rule and generally allowed non-business postings on its bulletin boards.  However, as soon as union activists started posting information on the boards, the company implemented an unwritten rule banning non-business solicitations.  The NLRB found that Register Guard didn’t apply because the case didn’t involve discriminatory enforcement of a written company-wide no-solicitation policy.  Instead, it involved an unwritten policy that was abruptly (and discriminatorily) changed in response to union activities.

This entry was posted on Tuesday, May 20th, 2008 at 6:58 am and is filed under E-mail, Employment Law News, Unions. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.