Can employers prohibit use of company e-mail for union solicitations?

In one of its most highly-anticipated decisions, the National Labor Relations Board, in December 2007, ruled that employees have no statutory right to use an employer's e-mail system for Section 7 purposes ( The Guard Publishing Company d/b/a The Register-Guard (2007) 351 NLRB No 70). As a result, employers may lawfully maintain a policy that prohibits employees from using the employer's e-mail system for any non-job-related solicitations.

Employers can distinguish between types of personal e-mail. Moreover, an employer can distinguish between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and group or organizational postings such as union materials on the other. This means that an employer may permit employee personal e-mail usage unrelated to union activity, but prohibit any use of the e-mail system for union solicitation.

According to the Board, employers can lawfully distinguish between:

• charitable solicitations and noncharitable solicitations;

• solicitations of a personal nature (e.g. a car for sale) and solicitations for the commercial sale of a product (e.g. Avon products);

• business-related use and non-business-related use.

Example 1: Activities prohibited based on Section 7 grounds. An employer who permits solicitation by antiunion employees but not by prounion employees violates the National Labor Relations Act.

Example 2: Rule allowing charitable solicitations. A rule that permits charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.