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No Changing of the Guard: NLRB Continues to Uphold Policies Barring Union Use of Employer Email Systems

In a somewhat surprising move, the Board refused to revisit its 2007 decision in Register Guard, 351 NLRB 1110 (2007), which permits employers to bar use of employer email systems to solicit employees, provided it does not discriminate against unions. Instead, on June 21, 2013, the NLRB issued its decision in Weyerhaeuser Co., 359 NLRB No. 138 (2013), upholding an Administrative Law Judge’s finding that the company’s electronic media use policy, which restricted use of company electronic media to “business purposes only,” with limited exceptions for personal use with management consent, was lawful.

In her underlying decision, the ALJ rejected the General Counsel’s overture requesting that she overturn Register Guard. Instead, the ALJ applied Register Guard, explaining that “[a]ny arguments regarding the legal integrity of Board precedent . . . are properly addressed to the Board.” The Board declined the General Counsel’s invitation to overturn its six-year-old precedent and agreed with the ALJ that the company’s “facially neutral” policy was lawful.

Nevertheless, the employer did not escape unscathed. The Board did conclude that the company’s Informational Notice admonishing employee union representatives that the working time they devoted “to compose and send emails during working hours has risen to an unacceptable volume” was discriminatory. Because the Notice specifically singled out just these union-related emails for more restrictive treatment, the Board found that the Notice “unlawfully ‘discriminate[d] on its face along Section 7 lines.’” According to the Board, “[b]y its own terms, the [Notice] placed limitations only on email messages sent by union representatives and related to union business,” and thus was unlawful.

Moreover, because the Notice was unlawful, discipline given to an employee pursuant to the Notice was also unlawful. Consequently, the Board ordered the Notice and the discipline rescinded.

The important point for employers to take away from Weyerhaeuser Co. is that Register Guard remains the law of the land for electronic media use policies. That means that employers may continue to prohibit use of their internal email (and other electronic messaging) systems for solicitation so long as it does so in a manner that does not target only union-related solicitations.

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