On March 12, 2014 a three-person panel of the NLRB issued a rather scathing decision with respect to the named employer’s attempted enforcement of their e-mail policy. The employer involved, the California Institute of Technology Jet Propulsion Laboratory, employed approximately 5000 individuals at the site in question. As a result of new federal regulations, per homeland security concerns, federal government employees and employees for contractors with the federal government, were subject to additional security procedures to enter any federal facilities, including the employer’s site in issue. From all indications, the background checks in issue at this particular site were extremely broad, resulting in a number of employees making protests and initiating a lawsuit over the matter. The litigation was high profile and resulted in a decision by the Supreme Court in 2011. The outcome of the Supreme Court decision resulted in a number of employees issuing e-mail messages to those in their employment group, utilizing the work e-mail system. The recipients of these e-mails ranged from approximately 100 to over 700 employees. The focus of the e-mails was the security process and the employees’ ongoing desire to develop a less onerous process. There were a number of e-mail responses supporting the actions by the individual employees who sent the e-mails.
Each of the employees who issued the e-mails was brought in and cited for discipline, with a variety of different rules being invoked. However, it was clear from the testimony at trial that employees historically had carte blanche rights to use the e-mail system for a number of different non-work related activities, without any sort of disciplinary recourse by the employer being taken, either as to content or the scope of the distribution. Needless to say it did not take the Administrative Law Judge much in the way of analysis to find a violation of the Act, concluding that the content of the message was protected, and obviously, based upon the facts, clearly concerted. Moreover, it was abundantly clear that the employer was applying whatever e-mail policy that might exist in a very discriminatory fashion.
The obvious take-away from this case is that while Register Guard allows an employer to control the use of its e-mail system, discriminatory application by an employer will still bring down the heavy hand of the NLRB. In other words, if you have an e-mail policy in place it needs to be enforced in an even-handed and uniform fashion, and any attempts to use it in a selective fashion, is going to run afoul of the National Labor Relations Act. Accordingly, this case suggests that training, like in any HR situation, is critical for the maintenance of a proper workplace, which includes training on established policies so that allegations of arbitrary or discriminatory treatment are lessened.