The NLRB’s Decision in Guard Publishing Co. (The Register Guard), 2007 N.L.R.B. 1110

In 2007 the NLRB issued its decision in The Register Guard, addressing the issues of whether employees have a right under Section 7 of the NLRA to use their employer's email system to communicate with one another and whether an employer violates the NLRA if it permits other non-work-related emails but prohibits emails on Section 7 matters. N. Peter Lareau examines the reasoning of the NLRB, as well as that of the D.C. Circuit on appeal.

Excerpt:

On January 10, 2007, the National Labor Relations Board ("Board") issued a notice of oral argument and invitation to parties and interested amici curiae to file briefs with respect to several issues relating to employees' use of their employer's e-mail system (or other computer-based communication systems) to communicate with other employees about union or other Section 7 matters. Among the issues to be addressed were: whether employees have a right under Section 7 of the National Labor Relations Act ("Act") to use their employer's e-mail system to communicate with one another and whether an employer violates the Act if it permits other non-work-related e-mails but prohibits e-mails on Section 7 matters.

On December 16, 2007, the Board issued its decision in The Register Guard responding to those issues. The Board held, first, that an employer does not violate the Act by maintaining a policy that prohibits employees from using the employer's e-mail system for any non-job-related solicitations. Second, in determining whether an employer has violated the Act by discriminatorily enforcing such a non-use policy, the Board adopted the reasoning of the Seventh Circuit in Fleming Companies v. NLRB, and Guardian Industries Corp. v. NLRB. In those two cases, which involved employee use of employer bulletin boards, the appellate court distinguished between personal non-work-related postings (such as for-sale notices and wedding announcements) and group or organizational postings (such as Guild materials). In adopting the position of the Seventh Circuit in Fleming and Guardian Industries, the Board overruled the underlying Board decisions "and other similar cases to the extent they are inconsistent[.]" Third, applying that standard, the Board concluded that two instances of employer enforcement of the policy did not violate the Act, while a third instance did.

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The Board majority first tackled the issue of whether the employees had a Section 7 right to use the Publisher's e-mail system for Guild purposes. Citing Union Carbide Corp. v. NLRB, the Board stated that an employer has a basic property right to regulate the use of its equipment. Acknowledging that whether employees have a Section 7 right to use an employer's e-mail system is an issue of first impression, the Board noted that it had long held that employees had "no statutory right . . . to use an employer's equipment or media," (such as bulletin boards, telephones, and televisions) for Section 7 communications and that an employer may prohibit such use so long as the prohibition is nondiscriminatory. [footnotes omitted]

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