Register-Guard 2007 NLRB e-mail decision reversed by D.C. Circuit

Updated September 14, 2009: One of the "Bush" Board's most criticized decisions is Register-Guard. A three member majority held employees have no Section 7 right to use an employer's e-mail system. The majority also found that an employer's prohibition against e-mails containing union solicitations could be enforced despite the employer permitting employees to send non-job-related e-mails. This case is both an excellent teaching tool for analyzing accessibility/employer's property rights as well as a road map for immediate employer action. More on both after the jump

Teaching Point: The case encourages analysis of the tension between an employer's property right and Section 7. After discussing Lechmere and the holding that non-employee organizers have no Section 7 rights, and a very high burden to attain access to an employer's property, Register Guard is a wonderful case to introduce Republic Aviation and its directive that employees must be permitted the opportunity to engage in section 7 activities during non-working time on employer's property. Member Liebman's dissent argues forcefully e-mail is modern communication governed by Republic Aviation, not a use of employer's property. Further she argues the employer invited the employees to use its property and permitted personal and non-job related postings. In contrast, in class, I discuss the cases which have denied employees use of employers' bulletin boards, televisions, copy machines, etc. This aspect of the Board's decision was not appealed.
The case also adopts a very narrow view of discrimination requiring the "unequal treatment of equals," to support a finding of a violation. This facilitates a discussion of the breadth of Section 7, and the development of the narrow discrimination standard in the Title VII context. The facts of the three e-mails in issue focuses attention on the narrow discrimination analysis. Discipline for two e-mails containing solicitations was held not to violate the act, but discipline for a third, which did not contain a solicitation to act, was found to violate the act. The Court of Appeals disagreed. It noted the only discipline ever meted out was for union related e-mails, and further that the warnings issued themselves made it clear the section 7 protected content was the reason for the discipline.
Employers Point: Many employers are rightly concerned about EFCA and changes it may mandate. EFCA faces a contentious opposition in Congress and its passage is not imminent. At this point no one can precisely predict its ultimate provisions. There are a number of things employers should do, but buying into a comprehensive EFCA response at this point is premature, because we simply do not know what the statute will command if and when it is passed. The Circuit Court's rejection of the narrow standard of discrimination set out by the Board Majority underscores one area in need of immediate review-  an employer's policies barring solicitation. Also, with considerable more certainty we can predict the outcome of the confirmation of the three pending nominations to the NLRB. The Board will have a strong pro-labor majority. Employers should begin immediate preparation for complying with no solicitation issues under a revised standard which may include mandated access to e-mail. Employers response must consider not only the NLRA, but laws affecting the transmission and storage of electronic data. We cannot be sure whether Member Liebman's view that employees should have presumptive access to employer's e-mail system will prevail, but it is virtually certain the Board Majority's narrow view of what constitutes discriminatory enforcement will be reversed as it has already been rejected by the D.C. Circuit.