On May 15, 2008, NLRB General Counsel Ronald Meisburg issued a memorandum describing the Board’s application of the holding in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007) (”Register-Guard“). In Register-Guard, the Board determined that an employer who prohibited the use of the employer’s email system for non-job-related solicitations did not violate section 8(a)(1) of the National Labor Relations Act (”the Act”) when it applied this rule to Section 7 activity. The Board majority held that an employer’s email system is company property that employees have no statutory right to use.

After Register-Guard, Regional Officers were directed to submit discrimination cases involving company property to the Division of Advice. The Division of Advice reached the following determinations:

• An employer did not violate the Act by enforcing a rule that barred union officials from sending emails to company managers outside of the facility. The union used the company’s email system to send broadly distributed emails to company managers outside the facility. The Division determined that the company’s rule was lawful because it concerned how the union was permitted to use the employer’s email system and did not otherwise prohibit the union from engaging in protected communications.
• An employer’s rule that prohibits solicitation for any purpose during work hours was unlawful when applied to union activity. The employer inconsistently enforced this policy by permitting non-union-related solicitation activity including institutional and individual commercial solicitations, school fundraising solicitations, and personal solicitations. The Division reasoned that an employer may not discriminatorily enforce a facially valid no email solicitation rule.
• A rule that was re-promulgated after union organizing activities began at the employer’s site was a violation of the Act. After an employee sent emails about a union meeting, the employee was disciplined for misusing the employer’s email system. Prior to sending the email, the employee checked with the employer’s IT director to determine what is considered abuse of the employer’s computer system. The IT director did not inform the employee that personal email or email solicitation was against employer policy. The case initially settled after an investigation revealed that the employee was disciplined because of union activity. Subsequently, the employer again disciplined the same employee for sending another email with union-related content. The Division concluded that the employer re-promulgated its email rule for anti-union reasons, and discriminately enforced the rule against union activity.
• An employer violated the Act when it discriminatorily enforced its electronic communications policy against an employee. The employer terminated the employment of an employee after the employer learned that the employee was the author of an email sent to the employer’s Board of Directors that listed concerns that employees had about working conditions. The employer alleged that the employee was terminated for inappropriately using the employer’s computers in violation of its policy. The Division found that the employer unlawfully discharged the employee for engaging in protected activities. The Division noted that the employer’s email policy allowed reasonable personal use of the employer’s computer and the employer permitted employees’ use of the internet, email, and other company equipment for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.
• An employer violated the Act when it discriminatorily prohibited use of its employee bulletin board. A union organization event was held at one of the employer’s stores during which union material was placed on a bulletin board within the store designated for employees. The bulletin board was used for personal and general non-work related matters. The union material was taken down, and the employer later turned the bulletin board into a management only posting site. The Division concluded that the facts established an anti-union motive because the timing of the employer’s conduct and the actions themselves were directly in response to the union activity.

These decisions make clear that, after Register-Guard, the Board will not find an employer’s use of facially valid rules lawful when the facts demonstrate that the employer discriminatorily enforced the rules to prohibit protected activity, or when the employer’s actions are motivated by anti-union animus.