Cleanup In Aisle “Fore:” NLRB Likely To Use Roundy’ s Inc. Case to Wipe Away Bush-era Standard for Union Access to Employer E-Mail Systems.

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May 20, 2014

In 2007, the Bush-era Board (in a 3-2 vote) established a property-right based standard through which employee use of company-owned [including non-union companies] email systems for union solicitation may be restricted. Through the Register Guard decision, 351 NLRB No. 70 (December 16, 2007), the Board made clear that impermissible discrimination in violation of the National Labor Relations Act means “unequal treatment of equals,” or treating communications of “similar character“ differently based on union status or content. In other words, under Register Guard, employers are free to prohibit access to email systems in connection with certain non-work-related solicitations like those involving unions, while at the same time allowing other non-work-related solicitations of a dissimilar character, such as jokes, baby announcements, offers for sports tickets and solicitation on behalf of charitable organizations. Significantly, under Register Guard, pro-union solicitations must be compared to anti-union communications or solicitations involving other non-charitable organizations. Thus, employers cannot prohibit access to email systems in connection with non-work-related, “pro union” solicitations while at the same time allowing access to email systems for non-work-related “anti-union” solicitations, or allow solicitations on behalf of other non-charitable membership organizations (i.e., Toastmasters International)this would constitute “unequal treatment of equals.”

In Roundy’s Inc., the Board is expected to decide whether the grocery company’s attempts to prohibit union solicitation and distribution at its physical store locations while permitting similar solicitation and distribution by non-union groups [i.e., the Girl Scouts or the Salvation Army] violates the National Labor Relations Act. The Board is likely to consider prior Board law that established the principle that it is illegal to deny union solicitation on physical property while allowing non-union solicitation on the same physical property. Although Roundy’s Inc. does not involve alleged discrimination in connection with Roundy’s email systems, “its virtual property”, the Board nevertheless invited briefs addressing how the Register Guard discrimination standard applies in the Roundy’s Inc. case, giving rise to speculation that the Board may use the Roundy’s Inc. case as a vehicle to eliminate the Register Guard standard.

If the Board eliminates the Register Guard discrimination standard, employers will no longer be free to prohibit access to email systems for solicitation related to union activities unless employers prohibit employee access to email systems to engage in any form of non-work related communication, including baby announcements and party invitations. Employers have historically struggled with this sort of “all or nothing” approach, but, given the historically low rate of private-sector unionization, it appears the Board is primarily interested in restocking the shelves (sorry, I couldn’t resist).

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