NLRB Upholds Prohibition on Customized E-Mail Signature Lines

A uniformly enforced prohibition on employee customization of e-mail signature lines does not violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has determined. In the same decision, the board also decided that a company may have blogging policies that include non-disparagement rules.

But NLRB law ebbs and flows depending on which party holds power in the White House, said David Miller, an attorney with Bryant Miller Olive in Miami. "The Republican majority on the board ends later this year with the expiration of member William Emanuel's term," he said. "[President Joe] Biden will then have the opportunity to have three Democrats on the board. The tide will, without doubt, turn."

For now, though, the board has approved bans on customized e-mail signature lines and blogging policies with non-disparagement rules.

No Customization of E-Mail Signature Lines

In David Saxe Productions LLC and V Theater Group LLC, the board upheld a policy that stated, "Some casual personal use of the company's e-mail and Internet connection is acceptable with prior approval provided that personal usage does not become excessive or interfere with the employee's productivity. Further, an employee's company e-mail address is to be used solely for work-related correspondence only."

The e-mail policy went on to state, "The following non-inclusive list contains examples of inappropriate materials that should NOT be sent or received via e-mail or Internet Access: … Customized signature lines containing personalized quotes, personal agendas, solicitations, etc. (only information pertaining to name, job title and contact information should be included)."

The NLRB upheld the policy, noting that employees have no statutory right to use an employer's e-mail for NLRA purposes. As a result, there is no longer a basis for finding that employees have the right to include union- and protected-concerted-activity-related messages in their signature blocks, the NLRB reasoned.

The NLRA's general counsel compared the rule against altering e-mail signature blocks to a union insignia ban, but the NLRB wasn't persuaded. "Such insignia are typically pins, buttons or stickers affixed to employees' work attire," the board noted. "The rule applies solely to e-mails sent on the respondent's e-mail system, and absent exceptional circumstances not relevant here, an employer has no obligation to permit employees to use its e-mail system for [NLRA] Section 7 purposes," the NLRB said.

Section 7 guarantees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

In this case, the employer had been strictly even-handed in issuing and enforcing this policy, Miller said. "No signature alterations were allowed, and no exceptions were made," he noted. "If an employer is not prepared to be equally strict, it could find its policy thrown out."
In addition, David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, said that the NLRB's ruling upholding no customization of e-mail signature lines "is one area a future board with a different makeup might alter."

Blogging Policy with Non-Disparagement Rule

The NLRB upheld a policy on blogging that said in part, "blogging by employees, whether using V Theater Group LLC's property and systems or personal computer systems, is also subject to the terms and restrictions set forth in this policy. Limited and occasional use of V Theater Group's systems to engage in blogging is acceptable, provided that it is done in a professional and responsible manner, does not otherwise violate V Theater Group's policy, [and] is not detrimental to V Theater Group's best interests."

The policy added, "Employees shall not engage in any blogging that may harm or tarnish the image, reputation and/or goodwill of V Theater Group LLC and/or any of its employees. Employees are also prohibited from making any discriminatory, disparaging, defamatory or harassing comments when blogging."

The NLRB said that in several recent decisions it has found that the business justifications underlying non-disparagement rules similar to the language in this case outweighed any adverse impact on Section 7 rights.

"An employer adopting a non-disparagement policy should make clear it applies only when speaking to or interacting with outside parties," Pryzbylski cautioned. "Moreover, employees have the right to speak to the media or on social media regarding labor relations issues—for example, wages, working conditions, etc.—so employers wanting to adopt policies restricting employees' ability to speak to the media on behalf of the company must make clear that the restriction applies only to speaking on behalf of the company." With the new administration, expect more restrictions on what employers can do, he predicted.

"Blogging policies are tricky to draft and enforce," said Phillip Wilson, president and general counsel of Labor Relations Institute in Broken Arrow, Okla. "Plus it is very likely that a policy like the one in V Theater Group will be found illegal when the Democrats gain a board majority later this year. The political back and forth is frustrating and is one big reason [some] employers choose not to implement these policies. There is just too much uncertainty."

Employers Have Some Leeway Under Earlier Decision

That said, Pryzbylski noted that the board's approach adopted in its 2017 Boeing Co. decision for ruling on employer policies "has resulted in employers having more latitude" in their policies protecting their reputations, controlling the company's message to the public and policing access to its property by outside organizations.

The Boeing case set up a two-factor test for policies: the kind and degree of impact the rule would have on protected activity and the legitimate reasons for the rule, Miller said. "This is a much more lenient standard" than was in place before Boeing "and remains the law," he said.

But Miller predicted that Boeing may be in jeopardy once Biden has a chance to create a Democrat majority on the board.