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Editor: Mitchell H. Rubinstein
New York Law School

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Friday, December 21, 2007

NLRB Issues Major Decision On Employee Use of E-Mail

Nlrb_2 E-mail has transformed the American as well as the global workplace. A 2004 survey showed that more than 81% of employees spend at least one hour a day on email and 10% spend more than 4 hours. Additionally, about 86% of employees send and receive at least some nonbusiness-related e-mail at work. The Register Guard, 351 NLRB No. 70, slip op. at 16 (Liebman, W. & Walsh, D., dissenting).   

What rights do employees have to use their employer's e-mail systems for concerted activities? A divided Board held in the above case that employees have basically none. Remarkably, the Republican controlled Board majority simply declared, in a case of first impression, that employers can prohibit the use of email for Section 7 matters. The majority viewed this holding as consistent with the employers basic property right to regulate and restrict employee use of company property. Under this view, an employer's email policy should be treated no different from other types of employer property such as bulletin boards, telephones and televisions.

Even more remarkable, is that the Board overruled prior law which made it unlawful to discriminate between union solicitation and other forms of solicitaton. Specifically, if you can believe this one, in determining whether a work rule is discriminatory, the discrimination must now be along Section 7 lines. The majority reasons:

We find that the Seventh Circuit’s analysis, rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.  Thus, in order to be unlawful, discrimination must be along Section 7 lines.  In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. See, e.g., Fleming, supra, 349 F.3d at 975 (“[C]ourts should look for disparate treatment of union postings before finding that an employer violated Sec. 8(a)(1).”); Lucile Salter Packard Children’s Hospital at Stanford v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996) (charging party must demonstrate that “the employer treated nonunion solicitations differently than union solicitations”).

For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees. In either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.  However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.  That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union. . .

Democrats Wilma B. Liebman and Dennis P. Walsh wrote a very lengthly stinging dissent. They write: 

Today’s decision confirms that the NLRB has become the “Rip Van Winkle of administrative agencies.”  NLRB v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992). Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.  In 2007, one cannot reasonably contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.

National labor policy must be responsive to the enormous technological changes that are taking place in our society.  Where, as here, an employer has given employees access to e-mail for regular, routine use in their work, we would find that banning all nonwork-related “solicitations” is presumptively unlawful absent special circumstances.  No special circumstances have been shown here.  Accordingly, we dissent from the majority’s holding that the Respondent’s ban on using e-mail for “non-job-related solicitations” was lawful.

We also dissent, in the strongest possible terms,  from the majority’s overruling of bedrock Board precedent about the meaning of discrimination as applied to Section 8(a)(1).  Under the majority’s new test, an employer does not violate Section 8(a)(1) by allowing employees to use an employer’s equipment or media for a broad range of nonwork-related communications but not for Section 7 communications.  We disagree, and therefore would also affirm the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings to employee Suzy Prozanski for sending union-related e-mails.  Finally, we dissent from the majority’s finding that the Respondent did not insist on a bargaining proposal that codified the Respondent’s unlawful discriminatory practice of prohibiting union-related e-mails while allowing other nonwork-related e-mails . . .

The major difference between the majority and the minority boils down to how one views e-mail communications. If e-mail is governed by decisions dealing with company equipment, then the majority has a point. However, if e-mail is concerned a form of solicitation, then it should be governed by the solication rules that the Supremes approved of in Republic Aviation v. NLRB, 324 U.S. 793 (1945). Frankly, I believe that the dissent has the much better argument. As the dissent explains:

Given the unique characteristics of e-mail and the way it has transformed modern communication, it is simply absurd to find an e-mail system analogous to a telephone, a television set, a bulletin board, or a slip of scrap paper.  Nevertheless, that is what the majority does, relying on the Board’s statements in prior cases that an employer may place nondiscriminatory restrictions on the nonwork-related use of such equipment and property.  None of those “equipment” cases, however, involved sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges.  Rather, they involved far more limited and finite resources.  For example, if a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced.  See, e.g., Sprint/United Management Co., 326 NLRB 397, 399 (1998) (employer “may have a legitimate interest in ensuring that its postings can easily be seen and read and that they are not obscured or diminished in prominence by other notices posted by employees”).  If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.

This decision demonstrates once again that politics are alive and well at the Board. On the postive site, Chairperson  Battista, who was in the majority, term ends in a few days. Lets hope that the President does not re-appoint him.

Professor Hirsh over at Workplace Prof Blog has described this decision as "awful" and "nonsensical." I couldn't agree more. On the postive side, Professor Hirsh believes that the no new Board members will be confirmed until the next election. I am not sure if he is entirely correct as the President may be able to make recess appointments.

Mitchell H. Rubinstein

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