Posted by: John Gilliland
January 25, 2008
Topic: Labor

I think I am now on track to do better in keeping this blog up to date... we'll see.  

Since I last wrote, probably the thing that has been getting the most play and discussion among employment lawyers is a decision in December 2007 by the National Labor Relations Board ("NLRB").  It ruled that employers have the right to prohibit workers from using the company's e-mail to send out union-related messages as long as the employer had a policy barring employees from sending e-mail for "non-job-related solicitations."  The Guard Publishing Co dba The Register Guard, 351 NLRB 70 (Dec 16, 2007).

In fact, the employer in that case allowed a number of non-work-related employee e-mails, but there was no evidence it permitted e-mails urging support for groups or organizations.  The NLRB held that unlawful discrimination against a union occurs only when union communications are prohibited while other communication "of a similar character" (such as from other outside organizations) are allowed.  In this case, that did not occur.

Given how common e-mail has become, it is an important decision for employers.  However, the NLRB was closely divided.  The vote was 3-2.  Thus, the rules could easily change in the future.

A valid no solicitation/no distribution policy is an important part of your personnel policies, especially if you want to control and manage union activities.  But, it needs to be carefully written to be lawful and control union solicitation.  It is something to seek knowledgeable legal advice concerning. 

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