Business-Use-Only Electronic Media Policy Is Lawful; Special Rule Restricting Union Business on E-mail Is Unlawful: NLRB | Practical Law

Business-Use-Only Electronic Media Policy Is Lawful; Special Rule Restricting Union Business on E-mail Is Unlawful: NLRB | Practical Law

In Weyerhaeuser Co., the National Labor Relations Board (NLRB) held that a company information notice directed at union representatives at a specific facility to limit their use of the company e-mail system to conduct union business violated the National Labor Relations Act (NLRA). In contrast, the NLRB affirmed an NLRB administrative law judge's decision that an electronic media use policy applicable to all employees company-wide, including those in the bargaining unit, was lawful under Register Guard.

Business-Use-Only Electronic Media Policy Is Lawful; Special Rule Restricting Union Business on E-mail Is Unlawful: NLRB

by PLC Labor & Employment
Published on 28 Jun 2013 • USA (National/Federal)
In Weyerhaeuser Co., the National Labor Relations Board (NLRB) held that a company information notice directed at union representatives at a specific facility to limit their use of the company e-mail system to conduct union business violated the National Labor Relations Act (NLRA). In contrast, the NLRB affirmed an NLRB administrative law judge's decision that an electronic media use policy applicable to all employees company-wide, including those in the bargaining unit, was lawful under Register Guard.
On June 20, 2013, the NLRB issued an opinion in Weyerhaeuser Co., holding that an electronic media use policy that required employees to use electronics and e-mail strictly for business purposes was lawful. However, the NLRB found that the employer violated the NLRA by maintaining a rule directed at union representatives at a specific facility perceived to be abusing e-mail access to conduct union business and disciplining a union representative under that rule.

Background

The employer, Weyerhaeuser Company, is a manufacturer of pulp and paper that operates facilities worldwide, including a plant in Longview, Washington. At the Longview plant, the union represents about 150 production and maintenance employees. This case involves the following employer regulations to limit employee use of its electronic resources:
  • Electronic Media Use Policy (Policy).
  • Company Informational Notice (CIN).

Policy

The Policy, which has been in effect since 2004, provides:
It a Weyerhaeuser policy that the company's electronic media, including intranet, Internet, extranet, telephony and messaging services are to be used for business purposes only.
The Policy allows limited personal use with the consent of an employee's supervising manager if the use does not adversely affect:
  • Productivity.
  • Work performance.
  • Network performance.
  • Weyerhaeuser’s goodwill or reputation.
  • The cost of doing business.
The Policy does not define the approved or appropriate "business purposes," but provides 14 examples of inappropriate use:
  • Excessive, unreasonable or unauthorized personal use.
  • Visiting or sending information to or receiving information from Internet sites that involve:
    • pornography;
    • terrorism;
    • violence;
    • racism;
    • hate;
    • gambling;
    • militancy;
    • hacking;
    • illegal drugs; or
    • other offensive or inappropriate topics.
  • Storing, sending or forwarding e-mails that contain:
    • libelous;
    • defamatory;
    • racist;
    • obscene;
    • inappropriate; or
    • harassing remarks.
  • Sending or forwarding chain mail.
  • Unauthorized use, sharing or distributing of IDs or passwords.
  • Using company resources for personal benefit such as to run a business or provide a service.
  • Violating copyright or software licensing rules.
  • Posting messages to external non-business related newsgroups or chat rooms from a company computer.
  • Bypassing or disabling company network security measures, including:
    • anti-virus;
    • firewalls;
    • security patches; and
    • auditing services.
  • Forging or attempting to forge e-mail messages, or disguising or attempting to disguise or impersonate identities when sending e-mail.
  • Auto-forwarding e-mail to external mail systems.
  • Failing to apply company retention standards to electronic information.
  • Violating standards for e-mail box size and attachment limits.
  • Creating or retaining protocols and applications not allowed within the firewall, such as:
    • peer to peer services; or
    • password cracking software.
Weyerhaeuser introduced the Policy in 2004 and has applied it company-wide to all employees, including those employees in a collective bargaining unit.
In June 2010, Weyerhaeuser introduced a special rule that applied only to union representatives in a particular facility, allegedly because:
  • Union representatives were spending too much work time sending e-mails.
  • Weyerhaeuser's e-mail system was rife with debates between members and representatives about union business.

CIN

The CIN, which has been in effect since June 2010, provides:
This Company Informational Notice supersedes all previous discussions on the use of the Company e-mail system by Union Representatives to conduct Contract Administration. . . . While the Company has granted the Union permission to utilize the Company's e-mail system to discuss Standing Committee related business, the amount of time being taken by Union Representatives to compose and send e-mails during working hours has risen to an unacceptable volume.
These communications should they continue to be allowed to take place on the Company's e-mail system, should be focused on the process that needs to take place rather than protracted dissertations or arguments composed and sent during working hours of the Union Representatives. Failure to abide by these guidelines when using the Company e-mail system, regardless of when, will result in the Company reassessment of allowing Union Business to take place on the Company e-mail system.
Before June 15, 2010, employee union representatives at the Longview plant had regularly used the company e-mail system to communicate about collective bargaining agreement administration matters. The CIN is only applicable to union representatives at the Longview plant.
After the CIN was issued, the union instructed its members to stop conducting union business via company e-mail and filed unfair labor practice charges with the NLRB.

Unfair Labor Practice Proceedings

The Acting General Counsel alleged that Weyerhaeuser violated the NLRA by:
  • Maintaining:
    • the Policy; and
    • the CIN.
  • Disciplining a union representative under the CIN.
An NLRB administrative law judge (ALJ) concluded that Weyerhaeuser:
  • Lawfully maintained the Policy.
  • Unlawfully:
    • maintained the CIN; and
    • disciplined a union representative under the CIN.
The ALJ applied Guard Publishing (Register Guard), where the panel (Board) heading the NLRB's judicial functions, as matters of first impression, held that:
  • A union had no statutory right to use an employer's e-mail system for Section 7 communications.
  • An employer may lawfully bar non-work-related use of its e-mail system unless it acts in a discriminatory manner.
  • Because the policy in Register Guard was not facially discriminatory, maintaining it did not violate the Act.
The Acting General Counsel and Weyerhaeuser appealed the ALJ's decision regarding the CIN by each filing exceptions, a supporting brief and an answering brief to the Board.

Outcome

The Board adopted the ALJ's recommended Order and affirmed the ALJ's holding that Weyerhaeuser's maintenance of:
  • The Policy was neutral and lawful.
  • The CIN and discipline under it were unlawful.
The CIN was unlawful because:
  • It was facially discriminatory. It restricted only e-mail messages sent by union representatives related to union business.
  • The CIN was not an extension of the lawful Policy. It did not refer to the Policy and, instead, was a freestanding restriction on union-related e-mail, that Weyerhaeuser implemented independently of the Policy to a segment of the company.
  • According to two of the deciding Board members (the third member refrained from opining), even if the CIN and the Policy were read together, the Board would still find the CIN to be discriminatory because:
    • the CIN went beyond simply reinforcing existing restrictions on union-related business during work time; and
    • placed broad substantive prohibitions on the types of e-mails that union representatives could send.
  • The CIN placed restrictions only on union-related e-mails even though:
    • evidence suggested that Weyerhaeuser permitted union representatives to send personal e-mails on the company e-mail system; and
    • Weyerhaeuser admitted that e-mails about union business were only a portion of the reason for the misuse of worktime.

Practical Implications

This case provides a rare blueprint for a Board-approved electronic media use policy. However, employers should recognize that this policy's language might not survive NLRB scrutiny if the Board, as expected, changes its analyses about:
  • What an e-mail constitutes (such as whether it is employer property, a solicitation or a distribution).
  • What must be compared when determining whether an employer policy or action is discriminatory under the NLRA.
The Board has foreshadowed in other decisions that it might overrule Register Guard at an appropriate time (see Legal Updates, Acquiring Nursing Home Operator Forfeits Right to Set Initial Terms and Conditions of Employment: NLRB and Unfazed by Ruling on Recess Appointments, NLRB Condemns Employer's Restrictions on Unapproved Communications with Media, Law Enforcement).
Here, the Board affirmed the ALJ's conclusions conspicuously without mentioning or citing to Register Guard even though it was the case relied on by:
  • The counsel for the Acting General Counsel to prosecute the unfair labor practice charges.
  • The ALJ for finding the Policy lawful and the CIN unlawful.
Employers should continue to expect that the Board will soon overrule Register Guard at least in part, in Roundy's, Inc. In Roundy's, the Board invited parties and amici to brief arguments supporting and opposing the Board's Register Guard analysis even though the case concerned union picketing and employer property rights, unconnected to employer rights under the NLRA to regulate their e-mail and other electronic media systems.

Court Documents