Publications: NLRB: Email Policy Must Be Negotiated With Union

To read the original Client Update in PDF format, please click the Related Files link.

Employee email abuse creates a significant risk of employment liability while taxing workplace productivity. Most employers and their counsel have responded with email and other electronic information systems policies (i). But beware: in a unionized workplace, the adoption or revision of an email policy may have to be negotiated with the union.

On September 10, 2007, the National Labor Relations Board (NLRB) affirmed an administrative law judge’s decision for the union in California Newspapers Partnership and Northern California Media Workers Guild/Typographical Union (350 N.L.R.B. No. 89). In California Newspapers, the NLRB ordered the employer to rescind a revised email policy that it failed to negotiate with its employees’ union. It also ordered the employer to expunge its files of any record of employee discipline imposed for violations of the revised policy, and required it to give disciplined workers written notice that prior discipline would “not be used against them in any way.” The NLRB required the employer to post notices to its workforce stating, among other things, that:

The term ‘working conditions’ includes our rules and policies concerning represented employees’ non-business use of our email system. A prohibition on represented employees sending personal email messages to multiple addresses—broadcast messaging—is such a rule.

The employer and union in California Newspapers had previously negotiated a collective bargaining agreement (CBA) with both “management rights” and “zipper” clauses. Management rights provision gives employers the exclusive prerogative to amend workplace rules and operating policies consistent with the terms of the CBA, while so-called zipper clauses typically relieve them of the obligation to negotiate terms that either were, or could have been, included in the CBA while it is in effect.

But because the record in California Newspapers did not show that an email policy was “fully discussed and explicitly explored” during previous contract negotiations, the NLRB found that the union did not waive its right to bargain over the revised email policy through either the management rights or zipper provisions of the parties’ CBA. Thus, the NLRB found that in unilaterally implementing a revised email policy without the union’s agreement, the employer made an illegal change in working conditions and violated federal labor law.

The NLRB’s California Newspapers decision demonstrates that employers’ discretion even to adopt measures intended to safeguard the proper use of their business information systems may be constrained in a unionized workplace. When in doubt, unionized employers should consult their counsel before implementing rule changes that they might otherwise consider within management rights, and consider carefully whether such changes may instead be subject to mandatory collective bargaining.

(i) See, U&H Employment Law Update,Updating Your Electronic Communications Policy (December 2004)