NLRB’s New Top Attorney Threatens to Overturn Employer-Friendly E-Mail Decision
By Ruder Ware Alumni
May 19, 2014
Last week, the NLRB’s (Board) newly-confirmed top lawyer, Richard Griffin, publicly commented that if given an opportunity (in other words, if the right case came along), he would attempt to overturn the employer-friendly, Bush-Era Board decision upholding an employer’s right to prohibit employee use of company e-mail systems for union solicitation (as long as the policy itself, or enforcement of the policy, is not discriminatory). The employer-friendly, Bush-Era Board decision is Register Guard, 351 NLRB No. 70 (2007). Through the Register Guard decision, the Bush-Era Board established a new approach for analyzing whether certain restrictions will be deemed discriminatory for National Labor Relations Act (Act) purposes. The Bush-Era Board concluded that for a restriction to be impermissibly discriminatory, it must involve “the unequal treatment of equals” which means that unlawful discrimination consists of “disparate treatment of activities or communications of a similar character because of their union” protected status.
Applying this new discrimination standard in Register Guard, the Bush-Era Board noted that “an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by anti-union employees but not by pro-union employees.” The Board went on to state that “nothing within the Act prohibits an employer from drawing lines on a non-Section 7 basis [rights protected under the Act].” According to the Board, this means, “an employer may draw a line between charitable solicitations and noncharitable 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 products), 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.” The Board further clarified, “[i]n each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates” on the basis of rights protected by the Act (e.g., a rule that permitted 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).
If Richard Griffin has his way, it’s likely the Board will apply an “all-or-nothing-approach,” such that if an employer permits its employees to use the company e-mail systems to advertise the personal sale of sports tickets or solicit employees to purchase products sold for school fundraisers, then it must also allow employees to communicate pro-union solicitations through the same e-mail systems. In other words, the “unequal treatment of equals” model of discrimination will be thrown out. Given Mr. Griffin’s undeniable threat to overturn Register Guard, employers have good reason to be on guard. One current case that may present itself as the vehicle through which Mr. Griffin may (with the help of his cohort) overturn Register Guard is Roundy’s Inc. The Board has already invited comments from interested parties about whether the Board should revisit the Register Guard decision. This development is worth watching, and employers are encouraged to closely scrutinize e-mail and media policies in anticipation of an unfavorable ruling.
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