A controversial decision from the National Labor Relations Board (the "Board") emphasizes the importance of having a communications policy regulating employees' use of an employer's e-mail system. In Guard Publishing, a case of first impression, the Board determined that a broad policy against using company e-mail systems to make non-work-related solicitations for third-party organizations can properly prohibit employees from making solicitations related to union activity. The Board also modified its standard for determining whether an employer discriminates against such activities in applying an otherwise neutral policy.

The Board examined an employer's communications policy to determine whether it violated the National Labor Relations Act ("NLRA") by effectively precluding employees from using company e-mail systems to solicit on behalf of the union. The policy stated in relevant part: "[c]ompany communications systems and the equipment used to operate the communications system are owned and provided by the company to assist in conducting business of [the employer]. 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 employer applied this broad policy to prohibit its employees from, among other things, making solicitations on behalf of the union, and disciplined one employee for sending three e-mails making solicitations for the union. The Board found that because the employer owned and had a property interest in its e-mail system, it could lawfully restrict its employees' non-work-related use of that system, so long as, in applying the policy, it did not discriminate against employee rights under the NLRA to organize and otherwise engage in concerted activities.

Additionally, the Board modified existing precedent regarding what constitutes discrimination in violation of the NLRA. Under the prior rule, where an employer applied its policy prohibiting use of its communications systems to make solicitations for organizations for non-work purposes to union activities, that prohibition could be deemed unlawful discrimination if the employer had previously permitted employees to send and receive any other personal and/or non-business-related e-mail communications. The Board, citing Seventh Circuit case law, modified its position by defining discrimination more precisely: "[u]nlawful discrimination [must consist] of disparate treatment of activities or communications of similar character because of their union or other Section 7 status." In other words, where a policy prohibits employees from making non-work-related solicitations on behalf of organizations, its application to union-related solicitations would only be discriminatory if the employer had previously allowed employees to use those same systems to make similar solicitations on behalf of other organizations.

As this decision shows, companies must be consistent in applying and enforcing non-solicitation policies. Application of such policies to union-related solicitations (or other activities generally considered "protected") could be deemed discriminatory where the company has allowed or continues to allow employees to use their communications systems to make similar solicitations on behalf of non-union organizations.

We will keep you apprised of how this decision is applied and interpreted by the Board in subsequent decisions and by the Courts of Appeals.