In an earlier Williams Kastner Alert, published last February, this author discussed the Register Guard decision which upheld discipline of employees who used company e-mail to solicit support for a union. That was a very significant decision since the union had argued that employees should have an absolute right to communicate using company equipment. The National Labor Relations Board disagreed and determined that employees did not have an absolute right to use e-mail to solicit union support and that the employer's uniform ban on any group solicitation (whether related to a union campaign or not) had not been discriminatorily applied. The decision has led to a flurry of copy-cat cases before the Board and the more recent Board analysis provides some clarification in this area.

It appears that such bans will be upheld as long as two things are present: (1) the rule is content neutral; and (2) the rule is uniformly applied. Thus, in one case, the Board issued a complaint against an employer with such a policy when the evidence revealed that non-unionrelated solicitations were permitted while union solicitations resulted in employee discipline. Based on the discriminatory application which appeared to turn on the content of the e-mail solicitation, a violation was found. In another case, employer discipline of an employee for sending e-mails about an off-site union organizing meeting to other employees was found unlawful since the discipline again appeared to be content based. The Register Guard analysis was also applied in another case to determine that employer action regarding the use of company bulletin boards was unlawful. In that case, employee postings about union meetings on bulletin boards were taken down while other similar solicitations remained.

The lesson in all of this is that the Board's decision in Register Guard did not authorize wholesale employer proscriptions on the use of company e-mail by union supporters. It did hold that employers have a right to curtail employee use of company computers for this purpose as long as the rules are applied uniformly and are not content-based. As a result, company policies and their day-to-day application need to be carefully reviewed to make sure that they conform with this guidance or employers may be found in violation of the Act and, more importantly, the company rules will be set aside.

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