The Impact of Employer Rules That Limit E-mail Use and Internet Access
| Publication year | 2000 |
| Pages | 7 |
| Citation | Vol. 29 No. 10 Pg. 7 |
2000, October, Pg. 7. The Impact of Employer Rules that Limit E-Mail Use and Internet Access
Vol. 29, No. 10, Pg. 7
The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 7]
October 2000
Vol. 29, No. 10 [Page 7]
Hot Topics in Employment Law
The Impact of Employer Rules that Limit E-Mail Use and
Internet Access
by Michael Josserand
by Michael Josserand
The National Labor Relations Act1 ("NLRA" or
"Act") gives employees the right to "self-
organization, to form, join, or assist labor organizations
. . and to engage in other concerted activities. . . . "
Act § 8(a)(1) makes it an unfair labor practice for an
employer to "interfere with, restrain or coerce
employees" in the exercise of Act § 7 rights.2 The
original statute was enacted in 1935 as the Wagner Act with
the National Labor Relations Board ("Board") as the
decisional body charged with interpreting the Act.3
The workplace at the time of the enactment of the Wagner Act
was industrial in nature. The Board recognized from an early
date that the rights of employees to solicit orally the
support of fellow employees for union organization and to
distribute literature in support of organizational activities
were basic forms of the exercise of Act § 7 rights.4 The
Board and the courts developed a framework of analysis for
determining the contexts in which communication by
solicitation and distribution in the industrial workplace
should be considered union or concerted activity protected by
Act § 7. The traditional means of solicitation and
distribution were conversations on the workroom floor and the
passing out of leaflets in the parking lot or at the plant
gate
The current workplace is less industrial and is becoming more
dominated by communications driven by e-mail and Internet
access. This article examines the law developed in the
industrial workplace with respect to solicitations
distributions, and the use of employer-owned means of
communication and relates that law to issues that have arisen
with respect to e-mail and Internet communications.
The Historical Framework
In the 1943 case of Republic Aviation,5 the U.S. Supreme
Court sustained the view of the Board that the right of
employees to engage in workplace solicitations are central to
the exercise of Act § 7 rights and require an accommodation
of an employer’s managerial and property rights to
their exercise. In Republic Aviation, the Court held that
even a nondiscriminatory no-solicitation rule—one
applying to all solicitations, not just union
solicitations—that restricts all solicitations,
even in work areas, is presumptively invalid.6 To limit
solicitations in work areas, an employer must establish that
special circumstances make a rule necessary to maintain
production or discipline.7 While an employer may not
generally limit all solicitations in work areas, the Board
has recognized that work time is for work and that an
employer validly may restrict solicitations during work time8
if the restriction is applied on a nondiscriminatory basis.9
On non-work time, employees are entitled to engage in union
or concerted solicitations in both work and non-work areas.
That same year, in Le Tourneuau Co. of Georgia,10 the Supreme
Court held that the nondiscriminatory application of a rule
prohibiting all distribution on plant property was similarly
unlawful. Again, the property rights of employers were
required to yield to the Act § 7 rights of employees to
distribute literature in non-work areas of the
employer’s plant. However, unlike solicitation,
distribution may be limited to non-work areas based on a
presumed legitimate employer concern for limiting litter in
work areas.11
A final principle of the historical analysis of employee
communication about § 7 matters is the traditionally
recognized right of an employer to limit the right to access
to employer equipment, even if that equipment can be used for
communication. The Board has not required the property
interests of the employer to yield to the § 7 activities of
employees as it has in the case of solicitation and
distribution. Thus, the Board has recognized the right of an
employer to deny employee access to the use of company
property used for communication, such as employer bulletin
boards, as long as access is denied on a nondiscriminatory
basis.12
Current Case Developments
Michael Josserand is a Deputy Regional Attorney in the Denver
Regional Office of the National Labor Relations Board. He
also has taught Labor Law as an Adjunct Professor at the
University of Denver College of Law. The views expressed in
this article are the author’s personal views and
represent his understanding of the issues and cases
discussed. They are not an official position of the Board.
The Board has not yet decided a "major" case in
which it has clearly articulated the framework of analysis
that it will apply to employee use of e-mail and whether the
same or different considerations will be found to apply to
Internet usage. However, two Board cases and two memoranda
from the office of the General Counsel13 issued by the
Division of Advice14 ("Division") are instructive
as to predicting the analysis that the Board and the General
Counsel may apply to these issues.
Board Cases Involving E-Mail Usage
In E. I. Du Pont de Nemours & Co.,15 the employer
permitted employees to use the e-mail system to communicate
with their fellow employees on a large number of personal
topics and concerns. The employer also made the system
available to employee committees that were found to be
dominated by labor organizations that violated Act §
8(a)(2).16 While allowing these communications, the employer
prohibited employees from using the e-mail system for
distributing union literature and notices. In this case, the
Board applied a traditional disparate treatment analysis and
held that the employer violated Act § 8(a)(1) by
discriminatorily denying access to the e-mail system for the
dissemination of union literature and notices.17
In Timekeeping Systems, Inc.,18 an employer proposed changes
in employee benefits via its e-mail system and solicited an
e-mail...
To continue reading
Request your trial