By Ashley Kircher, Esq.
Recently, an NLRB administrative law judge ruled that two policies maintained by subsidiaries of the University of Pittsburgh Medical Center (“UPMC”) violated Section 8(a)(1) of the National Labor Relations Act. See UPMC, Case No. 6-CA-81896, 4/19/13. Specifically, ALJ David Goldman found that the hospitals’ electronic mail and messaging and acceptable use of information technology resources policies impermissibly interfered with employees’ Section 7 right to engage in protected concerted activity. He did find, however, that the hospitals’ no solicitation policy passed muster under the Act.
Electronic Mail and Messaging Policy
The hospitals’ electronic mail and messaging policy provided that UPMC electronic messaging systems could not be used in the following ways:
- To promote illegal activity or in a way that might be disruptive, offensive to others, or harmful to morale;
- To solicit employees to support any group or organization unless sanctioned by executive management; or
- In a manner inconsistent with hospital policies and directives, including, but not limited to policies concerning commercial communication, solicitation, sexual harassment, job performance, and appropriate internet use.
In finding this policy unlawful, the ALJ reasoned that the distinction between the type of non-work use that was prohibited and that which was permitted was stated in “broad and ambiguous terms” (namely, “disruptive,” “offensive,” and “harmful to morale”) and that there were “no illustrations or guidance” that would assist employees in interpreting them. As a consequence, the terms could reasonably be understood to include a spectrum of communication about unions and criticism of working conditions, thereby unlawfully tending to chill employees’ exercise of their Section 7 rights. The ALJ’s decision implied that if the policy had simply prohibited all non-work use of the email system, it would have been lawful under the Act.
The ALJ also found the e-mail policy to be independently unlawful due to its prohibition on solicitation to “support any group or organization unless sanctioned by executive management.” The ALJ reasoned that a rule providing a management approval process “is antithetical to Section 7 activity” because “a reasonable employee will be chilled from even asking.”
Acceptable Use of Information Technology Resources Policy
The hospitals’ acceptable use of information technology resources policy provided that hospital employees could generally only use hospital IT resources for activities related to assigned job responsibilities, but that to the extent a particular IT resource was assigned to an employee, the employee was permitted de minimis personal use of the resource. “De minimis personal use” was defined as use of the IT resource only to the extent that it did not affect the employee’s job performance or prevent other employees from performing their job duties.
The policy also provided that without UPMC’s prior written consent, employees could not independently establish (or otherwise participate in) websites, social networks (such as Facebook, MySpace, peer-to-peer networks, Twitter, etc.) electronic bulletin board or other web-based applications or tools that (1) described any affiliation with UPMC; (2) disparaged or misrepresented UPMC; (3) made false or misleading statements regarding UPMC; or (4) used UPMC’s logos or other copyrighted or trademarked materials.
The ALJ found the policy to be unlawful, reasoning that it would tend to reasonably chill protected employee discussion regarding wages, personnel matters, benefits, and other terms and conditions of employment. The ALJ specifically noted that nothing in the policy indicated that protected activity was exempt, that the policy failed to clearly define what constituted impermissible conduct, and that the requirement that employees request and receive permission in order to find out if Section 7 activity would be permitted was “antithetical to the Act.”
No Solicitation Policy
The ALJ did, however, uphold the hospitals’ no-solicitation policy, which provided as follows:
No staff member may distribute any form of literature that is not related to UMPC business or staff duties at any time in any work, patient care, or treatment areas. Additionally, staff members may not use UMPC electronic messaging systems to engage in solicitation.
The ALJ found that the policy did not violate the NLRA because it prohibited all forms of non-work solicitation, and therefore did not have the potential to discriminate against protected concerted activity.
The ALJ’s decision highlights the importance of making sure that language in e-mail and IT policies is sufficiently insulated from challenge under the NLRA. In particular, employers will want to be cautious that their policies do not include provisions that make an employee’s ability to engage in certain kinds of expressive activity dependent on management approval. Employers should also strongly consider including language that explicitly informs employees that Section 7 activities are not prohibited. Going even further, and depending on the nature of their business, employers might consider taking the more drastic step of flatly prohibiting all non-work use of company e-mail systems and IT resources.
UPMC has until May 17 to appeal the ALJ’s decision to the NLRB. We will closely monitor any developments in the case.