Employer That Allows Personal E-Mails Must Also Allow Union-Related E-Mails
April 9, 2007
Todd D. Steenson- Chicago
In what appears to be the first federal appellate court decision to address the subject, the United States Court of Appeals for the Fourth Circuit recently ruled that an employer violated the National Labor Relations Act (NLRA) by prohibiting employees from using its e-mail system to discuss union matters while allowing employees to send e-mails concerning other personal and non-work-related matters. “When company-sponsored channels of communication are opened to non-company purposes, the NLRA prohibits an employer from preventing use for union purposes,” the Court ruled. (Media General Operations Inc. d/b/a Richmond Times-Dispatch v. NLRB, Nos. 06-1023, 06-1061, and 06-1213 (4th Cir. March 15, 2007).
Background
Media General Operations, Inc., which operates the Richmond Times-Dispatch newspaper, had an official e-mail policy that restricted use of the company e-mail system to business-related matters: “The e-mail system is provided to employees at Company expense to assist them in carrying out the Company’s business.” In practice, however, employees sent a wide variety of e-mail messages unrelated to company business, including personal messages, charitable announcements and union matters. Media General did little to prevent these uses and disciplined only two employees for e-mail violations that involved pornography. In July 2000, however, Media General told the union bargaining commit tee that the company’s e-mail system could not be used for union communications. The union then complained to the NLRB that Media General had enforced the e-mail policy in a discriminatory manner against the union.
Company Can’t Discriminate Against Union E-Mail Use
The NLRB found that Media General’s ban on union e-mails while allowing other non-company e-mails violated the NLRA, and the United States Court of Appeals for the Fourth Circuit agreed. An employer may not discriminate between union communications and other non-company messages in the workplace, the court stated. “When company-sponsored channels of communication are opened to non-company purposes, the NLRA prohibits an employer from preventing use for union purposes.”
The NLRB’s conclusion that Media General had violated this non-discrimination requirement was reasonable, the court concluded. Although the Media General e-mail policy restricted use of the e-mail system to company purposes, the company made “no attempt” to “enforce the policy against any violations other than union messages.” Rather, both managers and hourly employees regularly used the company’s e-mail system to send “messages unrelated to the work of the newspaper,” such as “to convey news about the employees’ personal lives, to arrange social events, and to inform employees about charities.” “Restriction 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,” the court ruled.
What Does This Mean for You?
The Media General decision should serve as a wake-up call for employers to examine both the content of their e-mail policies and the way they apply and enforce those policies. Even though the Media General case involved a unionized workplace, the NLRA, and its rules prohibiting dis crimination against union communications and e-mails, applies to unionized and non-unionized employers alike.
There are numerous employers whose formal e-mail policies restrict e-mails to business purposes only but that nonetheless allow employees to send a limited amount of non-work-related e-mails. Other employers have policies that explicitly allow employees to make reasonable and limited use of the e-mail system for personal purposes. There may be valid morale and employee relations reasons for doing so. But employers should be aware that in the eyes of both the NLRB and the Fourth Circuit, once you knowingly allow employees to use e-mail for any non-work-related purpose, you must allow them to send union-related e-mails as well.
Employers should also be aware that the NLRB is currently considering whether to grant employees even greater rights to communicate about unions through employer-owned e-mail systems. In Register Guard, the NLRB is considering whether to adopt a rule that requires employers to allow employees to send union-related e-mails over the employer’s e-mail system, at least outside working time and absent a specific showing of harm to the employer. That proposal goes even farther than the Media General case, because it would mean that the employer could not adopt an even-handed policy barring all non-work e-mails, but would rather have to create an exception to such a policy for certain union-related e-mails. We will keep you updated regarding further developments.
For now, employers must make sure that they do not apply their e-mail rules to prohibit only union-related communications.
For more information, e-mail Todd D. Steenson at todd.steenson@hklaw.com or call toll free, 1-888-688-8500.
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