Set policy now on union use of company's e-mail system

Virtually all employers face the difficulty of trying to minimize personal use of the workplace e-mail system by employees.

For those employers who also face actual or potential employee use of the e-mail system for union business or organizing, controlling the work e-mail system is even more difficult because e-mail is such a convenient way for union organizers to reach other employees and quickly disseminate union information.

The old process traditionally would require more work to handout information sheets and would occur in the open.

Now, its just a matter of hitting "send" or "forward" to discretely share union information.

In addition to all of the monitoring and detection challenges, employers have been stuck trying to apply legal rules designed to address hard-copy handouts and other overt union activities.

Rules unclear

It is an understatement to declare that the rules on how to lawfully prohibit union solicitations on the company system have been unclear.

This is particularly the case when an employer wants to allow some employee use of the work e-mail system for occasional personal business or solicitation for charitable or social causes, but also wishes to enforce no-solicitation policies when the system is used to communicate about union issues.

Employers have struggled to determine whether charitable solicitations seeking donations for a worthy cause or the typical personal advertisement for the sale of a used car could be squared with blanket no-solicitation/distribution employment policies that were written to bar employees from soliciting for union purposes.

Labor relations ruling

Fortunately, the National Labor Relations Board (NLRB) recently clarified the law, making it much easier for employers to make sure they stay on the right side of the line while limiting use of the employer's e-mail system for union purposes.

In The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70., the NLRB decided that an employer's basic property right in the company e-mail system gives an employer the ability to limit employees' nonwork use of the e-mail system, even if those limits stop unions from using the e-mail system to communicate with unionized workers.

The key is that the employer's e-mail policy must allow or disallow all "communications of a similar character." Communications of a similar character must be treated the same and there can be no "unequal treatment of equals."

For example, an employer can allow employees to send e-mails soliciting support for charitable organizations, such as the Red Cross, and lawfully disallow e-mails soliciting support for noncharitable organizations, like a relative's housekeeping business, or unions.

Likewise, an employer can distinguish between personal solicitations advertising old furniture for sale and commercial sales (an employee selling makeup or beauty products).

The employer may not, however, allow some solicitations for noncharitable causes (such as selling makeup products) and prohibit other noncharitable causes (union business).

In that situation, the make-up product business and the union business are both noncharitable and must be treated the same — all are prohibited, or all are allowed. The policy also may not expressly disallow only union communications.

Employers with union-free and unionized work forces alike should review their e-mail policies and revise them to provide equal treatment to similar types of nonwork communications.

The failure to do so now may mean that you cannot stop union e-mails within your own e-mail system later.

Elizabeth Erickson-Pevehouse and Mark Tilkins are attorneys at Foley and Lardner.