In a 3-2 decision issued on the final day of outgoing Chairman Robert Battista’s term, the NLRB determined that an employer may lawfully prohibit employees from using its email system for union business as long as the policy is not discriminatorily enforced against union-related emails. In The Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007), the Board considered the legality of an employer policy that prohibited use of company email for non-job-related solicitations. In accordance with this policy, an employee was reprimanded on two different occasions for three emails about union activities she sent to employees at their company email addresses. The general counsel provided evidence that employees were permitted to use the employer’s email system to send personal emails. The Board determined that the employer’s policy did not constitute an unfair labor practice under Section 8(a)(1) of the NLRA, and ruled that an employee has no statutory right to use an employer’s email system to further union activities.

In reaching its decision, the Board relied on past cases involving employer property rights. Although the issue of whether an employer’s email system may be used for Section 7 communications is an issue of first impression, the Board determined that an email system is similar to other employer-owned property such as bulletin boards, telephones and televisions. Thus, the Board applied the principle that applies to these other forms of property, which is that there is no statutory right to use an employer’s equipment or media as long as the restrictions an employer places on the use of its property are nondiscriminatory.

However, the Board also noted that there was not any contention that the employees here rarely or never saw each other in person or only communicated with each other by electronic means. The Board thus stated that its decision did not address circumstances in which there was no means of communication among employees at work other than email, raising the possibility that a different rule might apply under those circumstances.

Modifying its previous rulings, the Board determined that an employer’s enforcement of a policy restricting use of its email system or other property is only discriminatory if “the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.” Thus, the fact that union solicitation is barred and other non-work-related activities are permitted is not enough to establish that a restriction or its enforcement is discriminatory. It must be shown that the restriction or its enforcement results in “disparate treatment of activities or communications of a similar character because of their union status.”