by: Steven M. Swirsky and D. Martin Stanberry
An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.
The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that may be disruptive, offensive to others, or harmful to morale” or “[t]o solicit employees to support any group or organization, unless sanctioned by UPMC executive management.”
The ALJ, found that the policies, by using the terms and phrases “disruptive”, “offensive” and “harmful to morale” without providing examples or guidance to assist employees in interpreting the policy, “would reasonably be understood to include a spectrum of communication about unions, and … criticism of [the employer’s] working conditions, while permitting widespread nonwork use of the email system for an array of other subjects.”
The ALJ also found that the policy’s language restricting solicitation was unlawful because it provided managers with discretion to grant or deny solicitation in a manner thatdiscriminates against unions and union supporters.
The ALJ also found unlawful UPMC’s social media policy, which prohibited employees from using web-based applications to describe their affiliation with UPMC, disparage or misrepresent UPMC, or make false or misleading statements about UPMC, largely the same reasons.
Alluding to an issue decided by the NLRB in the Register Guard decision, the ALJ noted that “a complete ban on employee email use would not raise a legal issue.” Practically speaking however, this is not necessarily true. The current Board has taken an activist stance regarding the potentially discriminatory application of workplace policies and, in the real world, very few employers maintain and enforce absolute prohibitions on the personal use of employer communications and electronic systems. Thus it may be quite difficult to prove consistent and non-discriminatory enforcement of such policies.