Recent National Labor Relations Board Decision Gives Employers Greater Latitude In Restricting Solicitation And Non-Work Related Communications In The Workplace
The National Labor Relations Board recently issued an employer-friendly decision regarding efforts to restrict union communications in the workplace, The Guard Publishing Co. d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194 (December 16, 2007). In The Guard Publishing Co., the Board confronted for the first time a challenge to an employer's policy prohibiting employees from using its email system for any "non-job related solicitations," including union communications. In a sharply-divided decision, the Board rejected the union's argument that the policy unduly deprived employees of their right to communicate about union matters in the workplace, particularly since employees had the option of communicating face-to-face. Instead, the Board held that the The Guard Publishing Co. could lawfully prohibit employees' nonwork-related use of its email system, unless the company acted in a manner that discriminated against union (or other collective) activity.
The Board then next addressed the union's claim that the employer had discriminated against union activity in the enforcement of its email solicitation policy by disciplining employees for union, but not other non-work related, communications. In doing so, the Board substantially revamped its approach to such discriminatory enforcement cases. In the past, the Board had not engaged in a traditional discrimination analysis. Rather, the Board only upheld no-solicitation policies that restricted union communications if the legitimate business justifications underlying such policies outweighed the interference with employees' rights to engage in collective activity. In The Guard Publishing Co., the Board (again sharply-divided) changed course, holding that a traditional discrimination framework would apply to its analysis of no-solicitation policies going forward. As the Board stated: "We therefore adopt the position . . . that unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status, and we shall apply this view in the present case and future cases."
The Board gave several examples to clarify what types of policies would be permissible and impermissible under the new discrimination standard, which allows employers far more discretion than the prior standard (the old standard, traditionally known as the "United Way exception," essentially limited the permissible exceptions an employer's no-solicitation policy to certain, specified charities). As the Board noted, under the new standard, "an employer may draw a line between charitable and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business related use."
Despite the breadth of the Court's decision, there are limits: an employer could not permit employees to use email to solicit for one union but not another or permit solicitation by anti-union employees but not by pro-union employees.
The Board's decision, which applies to both unionized and non-unionized companies, allows employers far more flexibility in crafting no-solicitation policies that meet their particular business needs. Companies can seize the opportunity presented by the Guard Publishing decision to enact and enforce more comprehensive no-solicitation policies with less risk of challenge under the National Labor Relations Act. Of course, such policies should be carefully crafted to ensure compliance with the new non-discrimination standard and to mitigate any risk of challenge.
