Guard Publishing Company v. NLRB

Case Updates

Disagreeing with NCLC, the DC Circuit ruled that the company violated the National Labor Relations Act (NLRA) by disciplining an employee, who was also a union president, for sending union-related e-mails to fellow employees' work e-mail addresses.

In its second filing, NCLC asked the DC Circuit to reject a petition requesting the court to review the NLRB’s previous ruling construing the NLRA to permit policies and practices restricting the use of employer-owned email systems. In this case, in violation of company policy a union president used an employer-provided email system to send fellow employees emails regarding union organizing activities. According to NCLC’s brief, the NLRB correctly held that the NLRA permits employers to freely restrict the use of employer-owned emails systems. Moreover, the NLRA permits employers to allow some non-business emails without opening the door to all non-business emails – particularly those that are disruptive, costly or inappropriate – so long as the employer does not impermissibly discriminate. A decision rejecting the NLRB’s ruling would not reflect the practical role of email in the modern workplace.

The NLRB agreed with NCLC and ruled that the employer did not violate Section 8(a)(1) by maintaining a policy that prohibited employees from using the employer’s e-mail system for any “non-job-related solicitations.”

In its first filing, NCLC responded to a request by the National Labor Relations Board for amicus briefs on an employer’s written e-mail policy that prohibited any non-business use of its corporate e-mail system. In its brief, NCLC argued that the National Labor Relations Board, in fashioning its email rules, must be cognizant of an employer’s reasonable efforts to maintain its capital investments for business purposes. Employers must have the right to set restrictions and limitations on e-mail use that preserve the business purpose of their system, and ensure the system’s security and integrity.