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NLRB: Employer’s policy was legal, but its notice to employees wasn’t

published in Oklahoma Employment Law Letter | August 1, 2013

As you probably know, the National Labor Relations Board (NLRB) has been very aggressive on the issue of electronic media policies and what employers can and cannot prohibit. On June 20, the NLRB affirmed an administrative law judge’s decision that an employer’s electronic media policy was valid but its informal notice to employees wasn’t.

Too much time?

Weyerhaeuser Co. issued a companywide “electronic media use policy” in 2004. The policy restricted the use of electronic media to “business purposes only” and allowed minimal personal use of electronic media if it was approved by management. The policy didn’t define “business purposes.” However, it provided a list of things that were not allowed, including “excessive, unreasonable, or unauthorized use.”

In 2010, union representatives at a Weyerhaeuser facility started using the company’s e-mail system to communicate about union contract issues on a regular basis. Management at the facility felt the time spent on the communications had gotten out of hand, so on June 15, management issued a “company informal notice” (CIN) in an attempt to restrict employees from using the e-mail system to communicate about union contract issues. The CIN stated:

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 work 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.

The union claimed that the CIN was discriminatory and violated the National Labor Relations Act (NLRA) because it focused on communications by union reps, not all employees. The NLRB agreed with the union, pointing out that the CIN focused on union-related communications. In other words, Weyerhaeuser allowed union representatives to send personal e-mails that were unrelated to union activity but sought to restrict union-related activity.

The NLRB found that although the company’s electronic media policy was valid, the CIN violated the NLRA both on its face and in its application. The Board held that the CIN went beyond Weyerhaeuser’s policy and singled out certain employees and communications.

Bottom line

So what does this decision mean for you? First, it provides more guidance on what you can prohibit in your electronic media policies. Keep in mind that you should still be reasonable and acknowledge that some limited personal use will happen. Second, make sure your policy applies equally to all employees. Don’t give particular locations or classes of workers different rules unless you can justify the differences with a legitimate business reason.

As time goes on, we will undoubtedly receive more information on what the NLRB considers appropriate in electronic media policies. We will keep you updated on the issue.