Can Employees Use Their Employers' E-Mail Systems for Union Organizing or Union-Related Matters? Federal Labor Board Requests Briefing.
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Can Employees Use Their Employers' E-Mail Systems for Union Organizing or Union-Related Matters? Federal Labor Board Requests Briefing.

Many employers implement policies clarifying that their e-mail systems are to be used for business purposes only. One reason for these policies is to prevent employees from using company e-mail for purposes that are disruptive or may be contrary to the employer's interests, including union organizing efforts or union-related communications.

Unions and employees sometimes challenge these policies on the grounds that the employer discriminates by permitting other non-business uses of the e-mail system, or that company e-mail is simply a convenient way for employees in different locations to communicate about union matters. The few decisions addressing these issues have left employers with no clear guidance on when and how they may lawfully preclude employees, or outside union organizers, from co-opting their e-mail systems to advocate for unions.

To try to reduce the confusion, the National Labor Relations Board recently announced that it would hear oral arguments on March 27 in a case to consider whether and when employees may use their employers' e-mail systems to communicate about union matters. See Guard Publishing Co. d/b/a The Register-Guard, Cases 36-CA-8743-1 et al. The Board also invited any interested party to submit briefs addressing questions relevant to this issue, including, for example:

• What restrictions, if any, may an employer place on [union-related] communications?
  
  
• If employees have a right to use their employer's e-mail system, may an employer nevertheless prohibit e-mail access to its employees by non-employees?
  
  
• Should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?

The deadline for briefs is February 9, 2007. There is no timetable for the Board's decision.

The Bottom Line for Employers
All employers – whether non-unionized or unionized – should look for the eventual decision in this case, as it should provide much-needed guidance on how employers can and should regulate the use of their e-mail systems to limit union-related advocacy, and may warrant a revision of current e-mail usage policies. Interested employers may also wish to consider submitting a brief to address the Board's questions, or to solicit employer organizations or trade groups to submit a brief.   
 

*  Muskat, Martinez & Mahony, LLP represents employers in labor and employment law matters.  For more information, visit our website at www.m3law.com, or contact any of our partners:
 
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com