As you all know, the National Labor Relations Board has been very active on the issue of electronic media policies and what employers can and cannot prohibit or restrict. While the NLRB has deemed certain restrictive policies to be lawful, it has also taken aim at companies which don’t apply those restrictive policies evenly and consistently across all their workforces.
In one such case, the NLRB recently affirmed the ruling of an administrative court which deemed Weyerhaeuser Co.’s “Electronic Media Use Policy” to be lawful, but then ruled against the company for its discriminatory application of it. The policy, which was issued in 2004 and applied companywide, restricted the use of electronic media to “business purposes only” and allowed minimal personal use of electronic media at work, and only allowed such use if it was approved by management. The policy did not specifically define “business purposes,” but gave a list of things that were not allowed, including, among other things “excessive, unreasonable or unauthorized use.”
In 2010, the union representatives at a particular Weyerhaeuser facility started using the company email system on a regular basis to communicate concerning union contract administration matters. Local management felt the time spent on the communications had gotten out of hand so, on June 15, 2010, they issued a “company informal notice” (CIN), which sought to restrict that use at their facility. The CIN stated in part:
“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 emails 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 of Union Representatives.”
The union filed a claim, arguing the CIN was discriminatory in violation of the National Labor Relations Act because it focused specifically on communications by union representatives, and not to all employees companywide. Agreeing with the union, the NLRB also pointed out that the CIN focused specifically on union-related communications, noting that Weyerhaeuser had allowed union representatives to send personal emails unrelated to union activities without complaint. Only communications regarding union activity were targeted for restriction. The NLRB found that while the companywide Electronic Media Use Policy was valid, the CIN issued at the particular location of concern violated the NLRA both on its face and in its application. Essentially, the Board held the CIN went beyond the companywide policy by singling out certain employees and certain communications.
So, what does this mean for you? First, the decision provides more direction on what you can limit in your electronic media policies, including limiting use to “business purposes.” Keep in mind, you should still be reasonable about what that means, including acknowledging that some limited personal use is expected. Second, make sure your policy applies equally to all employees — don’t single out particular locations or particular classes of workers for different rules, unless you can truly justify the differences with a legitimate business reason.
As time goes on, we will undoubtedly receive more information on what the NLRB considers appropriate within electronic media policies. We will keep you updated on those decisions.