Higher Ed Law Prof Blog

The Top Stories of 2007

Below are the top 13 dtories, selected by the Greentree Gazette: The Business Magazine of Higher Education, that were posted on the magazine's website during the year just past.

The Greentree Gazette: The Business Magazine of Higher Education

Top Stories of 2007: #1

Federal grants fall short. From the Greentree Gazette

Top Stories of 2007: #2

Mitigating the massacre threat. From the Greentree Gazette

Top Stories of 2007: #3

A perfect storm is brewing in the world of college financing. From the Greentree Gazette

Top Stories of 2007: #4

Time to revamp the college fair. From the Greentree Gazette

Top Stories of 2007: #5

Migrating from Microsoft to Linux. From the Greentree Gazette

Top Stories of 2007:#6

Differential tuition for B-schools. From the Greentree Gazette

Top Stories of 2007: #7

Cuomo commences study-abroad witch hunt. From the Greentree Gazette

Top Stories of 2007: #8

Music piracy in congressional crosshairs. From the Greentree Gazette

Top Storiesw of 2007: #9

Is it goodbye to the Stafford Loan? From the Greentree Gazette

Top Stories of 2007:#10

Cuomo subpoenas, settles: "Show me the competition." From the Greentree Gazette

Top Stories of 2007: #11

VTU sets new bar for loss prevention experts: lessons to be learned. From the Greentree Gazette

Top Stories of 2007: #12

VTU tragedy stimulates emergency comms systems.From the Greentree Gazette

Top Stories of 2007: #13

Flood Watch int he Financial Aid Office. From the Greentree Gazette

For whatever it's worth: International Privacy Services

To: All Internet Privacy and Freedom Foundations
From: International Alliance Privacy Services (http://www.intl-alliance.com)
Date: December 29, 2007

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business, and make new friends. We provide anonymizing online services
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services we provide are: anonymous domain registration, anonymous
website hosting on multiple offshore high speed and dedicated servers,
various methods of hiding your real ip address, and providing secure and
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It is a well known fact that the NSA has operational control of many
well known email providers, namely hushmail and guardster.com. We have
dedicated our time, our financial resources, and our expertise to create
the first truly secure privacy company. We have the most secure methods
known to man on all our offshore servers. Again, all our servers are
internally managed with professional technical support and dedicated
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wants to keep you anonymous on the internet. Our servers are never
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We are currently hosting just about any site that our clients want.
This includes free speech, anti-war, activism, and anti-government sites
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Best Regards,

International Alliance Privacy Services

Reports from the MLA front

The Modern Language Association is holding its annual meeting in Chicago this year. Herewith, some reports from that venue, from the Chronicle of Higher Education.

Procedural changes at the NLRB

-----Original Message-----
From: Ross Runkel [mailto:Ross@lawmemo.com]
Sent: Friday, December 28, 2007 1:51 PM
To: Patrick J Cihon
Subject: NLRB Law Memo 12/28/2007

NLRB Law Memo 12/28/2007
By LawMemo - First in Employment Law
__________________________________________________________

NLRB arranges for two-Member Board to issue decisions.
NLRB delegates litigation authority to General Counsel.

The NLRB took the following actions December 20, announced December 28:

Anticipating a loss of two members when Congress adjourns in
January, the National Labor Relations Board has unanimously decided to
temporarily delegate to the General Counsel authority on all court
litigation matters that otherwise would require Board authorization.
This delegation will give the General Counsel full and final authority
on behalf of the Board to initiate and prosecute injunction proceedings
under Section 10(j), or Section 10(e) and (f), of the National Labor
Relations Act. The Board issued a similar delegation of authority to
the General Counsel in 1993 and 2001.

The sitting members are Wilma B. Liebman, Peter C. Schaumber,
Peter N. Kirsanow, and Dennis P. Walsh. Former Chairman Robert J.
Battista's term expired on December 16, 2007, leaving one vacancy.
Members Kirsanow and Walsh are serving in recess appointments that will
expire at the sine die adjournment of the current session of Congress.

Under these circumstances, the Board also delegated its powers
to Members Liebman, Schaumber, and Kirsanow. This action will permit
Members Liebman and Schaumber, as a quorum of the three-member group, to
issue decisions and orders in unfair labor practice and representation
cases. In 2005, a three-member Board issued a similar delegation
permitting a two-member quorum to issue decisions.

The temporary delegations, decided on December 20, 2007 and
announced today, will be effective as of midnight tonight. They will be
revoked when the Board returns to at least three members. In announcing
the delegations, the Board stated that it has "a continuing
responsibility to fulfill its statutory obligations in the most
effective and efficient manner possible."

The Board acted pursuant to Section 3(b) of the Act, which
provides that

[t]he Board is authorized to delegate to any group of three or more
members any or all of the powers which it may itself exercise. ... A
vacancy in the Board shall not impair the right of the remaining members
to exercise all of the powers of the Board, and three members of the
Board shall, at all times, constitute a quorum of the Board, except that
two members shall constitute a quorum of any group designated pursuant
to the first sentence hereof.

In addition to the statutory language, the Board relied on the legal
analysis and U. S. Circuit Court precedent set forth in the March 4,
2003 opinion issued by the Office of Legal Counsel of the U.S.
Department of Justice (OLC) in response to the Board's May 16, 2002
request for OLC's opinion whether the Board may issue decisions during
periods when three or more of the five seats on the Board are vacant.
OLC's opinion concluded that "if the Board delegated all of its powers
to a group of three members, that group could continue to issue
decisions and orders as long as a quorum of two members remained."

The Board has historically relied on this reasoning where one member of
a three-member Board is disqualified or recused from participating on
the merits of a case. The Board also noted that OLC's opinion does not
distinguish between decisions that were pending at the time of the
delegation of authority to the three-member Board and decisions that are
submitted to the Board after the delegation and the departure of the
third member.

_______________________________________________

"The Kite Runner" is the 7th most-widely read novel on college campuses

According to the Chronicle of Higher Education

"The Kite Runner" boys evacuated

The four boys who star in "The Kite Runner" were evacuated to the United Arab Emirates for fear of retaliation given that the film depicts sexual deviance.From FindLaw.Com

"The Kite Runner"...

... opens. Official movie site for "The Kite Runner."

Anthropologists who work with CIA in Afghanistan criticized

From the Chronicle of Higher Education

"Charlie Wilson's War"

Reviewed by Higher Ed Law Blogger Jim Castagnera at The History Place.

Good news for some U's

EEOC clarifies rules on retiree health plans; reductions after 65 allowed.From FindLaw.com

Judge sees through discrimination claims to human foibles

In Turner v. University of Washington, 2007 WL 4365789 (W.D. Wash., Dec. 11,2007), the plaintiff, an Ethiopian immigrant, claimed that a variety of adverse employment actions were motivated by her employer’s animosity toward her race and nationality. The facts, as presented by a sympathetic but level-headed federal judge, were as follows:
“As early as 1999, plaintiff exhibited unprofessional behavior at UWEB. In September of 1999, Cyndi Long, an E & O coordinator supervised by plaintiff, ultimately left UWEB because of adverse interactions with plaintiff. Before Ms. Long's departure, plaintiff asked Ruth Johnston, a UW employee with a doctorate in organizational development and known within the UW community as someone willing to help resolve interpersonal conflicts, to report on the cause of the difficulties between Ms. Long and plaintiff. As part of this report, Dr. Johnston commented generally on the UWEB staff's general impression of plaintiff, stating that ‘[Plaintiff] is ... seen generally as difficult to work with. She is perceived to be condescending, directive, demanding and picky, and unwilling to share credit with others. She is seen as working particularly well with those senior to her and particularly poorly with those junior to her. Some have talked with her about their issues with her, and others are fearful to do so. Staff sometimes avoid her or accommodate immediately to her needs in order to keep surface harmony.’
“By April 2002, the Court finds that plaintiff's unprofessional, confrontational behavior elevated to aggressive conduct during a meeting with Kahreen Tebeau, an African-American UWEB E & O program coordinator under plaintiff's supervision. At trial, Caren Tidwell and Sheri Ireton credibly testified that Ms. Tebeau stepped out of her meeting with plaintiff with disheveled clothing exclaiming that plaintiff had just physically grabbed Ms. Tebeau to keep her from leaving the meeting. Although plaintiff and Ms. Tebeau were the only people present in the room during this meeting, the Court finds that the version of this event reported by Ms. Tebeau to others more credible than plaintiff's story based on the factors identified in 9th Circuit Jury Instruction 1.11. The Court finds that given Ms. Tebeau's circumstance and position at UWEB, there was no reason for her to distort the truth of her interaction with plaintiff. Plaintiff is clearly minimizing the encounter and its impact on Ms. Tebeau.
“Later, Nina Hanlon, Ms. Tebeau's replacement as E & O program coordinator, was involved in an incident in March of 2003 with plaintiff while working on the NSF annual report. During a meeting with plaintiff, Ms. Hanlon was frightened by plaintiff's aggressive finger-pointing “bullying” behavior. On cross examination, Ms. Hanlon testified that plaintiff's emotional control at this meeting was not appropriate. As a result of her negative interactions with plaintiff, Ms. Hanlon requested to be reassigned out of UWEB.
“In April of 2003, Lorease Kendrick, a UW Senior Human Resources Consultant who is also African-American, investigated the verbal complaint Ms. Hanlon lodged against plaintiff as a result of the March 2003 incident. At some point in April, plaintiff called Ms. Kendrick to ask whether she had found that the accusations against plaintiff were the product of racial discrimination. When plaintiff was informed by Ms. Kendrick that the findings did not support discrimination, plaintiff became very angry that Ms. Kendrick could not “see” that the complaint about the incident was the result of discrimination. On cross examination Ms. Kendrick credibly testified that she felt very uncomfortable and surprised by plaintiff's reaction because Ms. Kendrick believed that they had previously enjoyed a cordial relationship at UW.
“Also in 2003, Mike Keller was assigned the UW University Complaint Investigation and Resolution Office (“UCIRO”) investigator for plaintiff's discrimination and retaliation complaint lodged with UCIRO in April 2003. In November of 2003, Mr. Keller met with plaintiff, in part, to provide plaintiff with his preliminary findings. After delivering information to plaintiff that she found unfavorable to her claim, as reported in Mr. Keller's contemporaneous notes from the meeting, plaintiff became aggressive and offensive toward Mr. Keller. Mr. Keller credibly testified that at this meeting plaintiff insulted him, clenching her fist, and that Mr. Keller informed plaintiff that the very type of aggressive behavior that she was exhibiting in the meeting with him was the reason why others reacted negatively to her.”
A tragic, but not discriminatory, situation. In ruling against the plaintiff on all her federal and state discrimination claims, His Honor clearly regretted what he concluded was a tragic inter-personal situation, caused primarily by the plaintiff’s own abrasive personality.
“Plaintiff claims that defendant UW and defendant Buddy Ratner, the Director of UWEB and a professor of chemical engineering and bioengineering at UW, discriminated against plaintiff based on her race and national origin, and later retaliated against her after she made internal complaints of race and national origin discrimination in 2003. Plaintiff also claims that defendant Ratner retaliated against her for opposing unlawful sexual conduct. The Court has jurisdiction over this matter under 28 U.S.C. § 1331 based on plaintiff's federal claims pursuant to 42 U.S.C. §§ 1981 and 1983, and supplemental jurisdiction over plaintiff's state law claims.
“Fanaye Turner and Buddy Ratner should have been friends for life. They shared a commitment to science education, a hope to extend the joy of science professions to under-served groups such as women and minorities and a zest for life away from UW that led to Ms. Turner participating in Dr. Ratner's wedding ceremony. Instead, they find themselves avoiding each other's glances sitting in opposing tables in an employment discrimination civil trial in the United States District Court for two weeks. How did this close professional and social relationship disintegrate over time? That is the question the Court must answer in determining whether plaintiff has met her burden of proof in this trial.
“It is clear that in 1997 Fanaye Turner arrived at the UWEB program as a talented and valued member of an extraordinary team of scientists, educators and staff people embarked on an important project with tremendous value to the community. It is also apparent that she departed UW in 2004 as a depressed, shaken individual who was a shell of her former self. This trial is about what happened between her arrival and departure and what caused the serious emotional and economic damages Fanaye Turner suffered as a result of leaving her job under duress in 2004. Was Fanaye Turner a victim of discrimination by a series of managers and fellow employees who treated her unfairly because of her race or Ethiopian background? Or was her downfall a matter of her own making fueled by her bursts of anger at colleagues and an inability to see that while her motives may always have been good, her behavior became unbearable in the workplace? That it was these actions of Fanaye Turner that led to the employment actions she later complained about, not any bias or prejudice by the defendants?
“Whenever good and honest people report events with widely differing stories, the explanation may range from outright lies, to faulty perceptions and memories. As Paul Simon observed in “The Boxer,” “A man hears what he wants to hear and disregards the rest .” The Court has heard from several witnesses who personally experienced the angry and intimidating behavior of Fanaye Turner in the workplace. Ms. Turner denies each and every one of these events to the extent that she believes she never exhibited anything more than frustration with others' failure to meet her high standards at work. It is this failure to recognize how her behavior caused these problems that leads Fanaye Turner to surmise that only racism, stereotyping and discrimination can explain the negative reactions of the individuals and the institution.
“Fanaye Turner's position as E & O Director at UW was her dream job. However, as with any position in a large organization-especially one with blurred lines of authority such as UWEB which was part of both the School of Engineering and the School of Medicine with questions about which Dean was in charge of which problems and which HR person was responsible for which complaint-there were undeniably bureaucratic failures that Fanaye Turner perceived as intentional affronts to her personally. These started with her first days on the job when she saw racial discrimination behind her inability to get heat and new furniture in her office. To compound the organizational problems inherent in UWEB's unique position, Dr. Ratner, as with many brilliant research scientists, did not have comparable skills as an administrator. He traveled extensively for his work and he expected his staff to work out problems without bringing them to his attention. What Fanaye Turner eventually came to see as an orchestrated plot to prevent her from attending key meetings and to deny her authority in crucial areas of her program was often just the everyday machinations of a bureaucracy where things do not always run smoothly.”
Authors’ Comments. The judge in this case was something of a poet and a philosopher. His opinion is a great example of the law as literature. His telling of the tragedy that resulted from cultural differences, personality flaws, and management inadequacies is compelling, as we are sure you agree after reading the extensive excerpts provided above. The decision somewhat wistfully concludes, “Ms. Turner's life story is a compelling one. The Court will never forget her testimony about her love of her native country's star-filled sky or how much her mother's confidence that she would be the first one in her family to be a college graduate inspired her to achieve great things. Her joy at dancing again at her daughter's wedding shows that Ms. Turner is capable of experiencing joy again. As Ms. Turner's able counsel pointed out in closing argument, the process of coming forward and telling your story can help a person repair the damage caused by negative events. While the Court has not found that plaintiff proved her legal claims against the defendants, there is no denying that Ms. Turner clearly had a profoundly positive effect on the lives of young women such as Mariana Loya, who credited much of her success to Ms. Turner. And of course her daughter, Dr. Diana Turner, is such an impressive woman who attributes much of her success to the support and encouragement she received from her mother.” We suggest that the defendants were fortunate in having defense counsel capable of presenting the interpersonal nuances that led the parties to trial and a judge who was sufficiently perceptive to distinguish between such interpersonal and managerial failures and illegal discrimination. Most employers, place in a similar position, would not be so lucky.

Article on the Mid-East from the US War Academy in Carlisle

Dear friends and colleagues,

Please see my last article The Mideast Axis of Destabilization at

http://www.biu.ac.il/SOC/besa/perspectives36.html

The article is published by The Begin-Sadat (BESA) Center for Strategic
Studies at Bar-Ilan University, in English and next week also in Hebrew.

This article is a summary of a monograph under the title "Iran - Syria -
Hizballah - Hamas: A Coalition against Nature. Why does it Work?"
forthcoming in the Proteus Monograph Series Fellows Program, US War Academy,
Carlisle, Pennsylvania. This summary is published with the kind agreement of
the Proteus Management Group, US War Academy.

I take this opportunity to wish all of you a happy and successful New Year
and hopefully a more peaceful one.

Ely Karmon

Research integrity reports due between Jan.1 and March 1

The United States Public Health Service (PHS) regulation, "Public Health Service
Policies on Research Misconduct," at 42 C.F.R. ?93.301
(http://ori.hhs.gov/documents/FR_Doc_05-9643.shtml) requires that all institutions
renew their research misconduct assurance by annually submitting a report to the
Office of Research Integrity (ORI) on the allegations, inquiries and investigations
they handled in the previous year and other matters related to the regulation.
*This report does not cover regulated research under the jurisdiction of the Food
and Drug Administration.

Submission of the Annual Report form on research misconduct for calendar year 2007
will again be handled electronically, through the ORI web site. Complete
instructions can be found at the ORI web site at
http://ori.hhs.gov/assurance/electronic_submission.shtml. This form must be
completed online and submitted to the ORI beginning on January 1, 2008 and no later
than March 1, 2008, or your institution will no longer be eligible to apply for or
receive PHS research funds.

If your institution is not receiving PHS funding and does not intend to apply for
PHS funding, it may remove itself from the ORI Assurance Database by notifying ORI
by letter or e-mail that it is withdrawing its assurance. If your institution
subsequently applies for PHS funding, it will be required to submit its policy for
responding to allegations of research misconduct to reactivate its assurance.

For the submission of this electronic Annual Report, we ask that you review all the
information in your record related to your institution's address, the institutional
official, phone, fax and e-mail. The e-mail address is extremely important, as
future notices and other information will be provided to your organization via
e-mail. The system has the capacity to identify two e-mail addresses. The official
named in the "Institutional Information" section is usually the same official who
certifies for the institution, however; this is not a requirement. ORI may ask that
an explanation be provided if these officials are not the same person because it
creates uncertainty about which official should be the primary ORI contact for
issues related to research misconduct at your institution.

On the Annual Report form, please verify the certifying official's information.
Before answering the policy question, first check whether your organization has
policies and procedures for handling allegations of research misconduct. Please
note that the small organization statement satisfies the requirement for policies
and procedures if your organization has 10 or fewer employees. Further information
on this option can be found on ORI's website at
http://ori.hhs.gov/assurance/small_org_statement.shtml.

Please check the appropriate box to indicate if your institution has received any
allegations or conducted any inquiries or investigations related to research
misconduct involving PHS supported research.

Please check the annual report form for completeness before submitting it to ORI; an
incomplete Annual Report does not satisfy the reporting requirement and may
jeopardize PHS funding. Selecting the "Approve" button at the bottom of the report
will submit the report to ORI.

Besides maintaining institutional eligibility and updating the ORI Assurance
Database, complete Annual Reports provide more accurate aggregate data for reporting
results back to institutions through the ORI Newsletter, the ORI Annual Report and
various staff presentations. We do not presently intend to report data for
individual institutions, but such information may be subject to disclosure in
response to a Freedom of Information Act request.

If you have forgotten your password, please select the link "+Click here to get your
User ID and Password" from the login screen. Your password will be sent to you via
email.

If you have any questions, the best way to reach me is via email at
Robin.Parker@hhs.gov.

Thank you for your cooperation in this important matter.

Robin Parker
Assurance Program Manager
U.S. Office of Public Health and Science
Office of Research Integrity,
1101 Wootton Parkway, Suite 750
Rockville, MD 20852
Ph: (240) 453-8400
Fax: (301) 594-0042
Robin.Parker@hhs.gov

Employees have no right to use employer's email for NLRA activities

-----Original Message-----
From: Ross Runkel [mailto:Ross@lawmemo.com]
Sent: Friday, December 21, 2007 6:14 PM
To: Patrick J Cihon
Subject: NLRB Law Memo 12/21/2007

NLRB Law Memo 12/21/2007
By LawMemo - First in Employment Law
__________________________________________________________

NLRB - Employees have no statutory right to use employer's email system
for "Section 7 communications."

The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70
(December 16, 2007)
http://www.lawmemo.com/nlrb/vol/351/70.htm

The National Labor Relations Board, in a 3-2 decision, held that an
employer did not violate Section 8(a)(1) by maintaining a policy that
prohibited employees from using the employer's e-mail system for any
"non-job-related solicitations."

The Board majority also announced and applied a new standard for
determining whether an employer has violated Section 8(a)(1) by
discriminatorily enforcing its policies. In deciding the case, the
Board considered the exceptions and briefs of the parties, amicus
submissions from various organizations, and presentations by the parties
and some amici at an oral argument on March 27, 2007.

The employer's written policy prohibited the use of e-mail for
"non-job-related solicitations." In practice, the employer allowed a
number of nonwork-related employee e-mails, but there was no evidence
that it permitted e-mails urging support for groups or organizations.
The employer issued two written warnings to employee Suzi Prozanski for
sending three union-related e-mails. The complaint alleged that the
employer's maintenance of the policy and its enforcement against
Prozanski were unlawful.

Addressing the maintenance of the policy, the Board majority of Chairman
Battista and Members Schaumber and Kirsanow reasoned that under Board
precedent, employees have no statutory right to use an employer's
equipment for Section 7 purposes. The majority found that Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held
that a ban on solicitation during nonworking time was unlawful absent
special circumstances, was inapplicable to the use of an employer's
e-mail system, because Republic Aviation involved only face-to-face
solicitation, not the use of employer equipment. The majority noted
that the use of e-mail "has not changed the pattern of industrial life
at the Respondent's facility to the extent that the forms of workplace
communication sanctioned in Republic Aviation have been rendered useless
. . . . Consequently, we find no basis in this case to refrain from
applying the settled principle that, absent discrimination, employees
have no statuto!
ry right to use an employer's equipment or media for Section 7
communications." Therefore, the majority concluded, the maintenance of
the policy did not violate Section 8(a)(1).

With respect to the alleged discriminatory application of the policy to
Prozanski's e-mails, the majority clarified that "discrimination under
the Act means drawing a distinction along Section 7 lines." The
majority adopted the reasoning of the United States Court of Appeals for
the Seventh Circuit, noting that in two cases involving the use of
employer bulletin boards, the court had distinguished between personal
nonwork-related postings such as for-sale notices and wedding
announcements, on the one hand, and "group" or "organizational" postings
such as union materials on the other. See Fleming Companies v. NLRB,
349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001);
and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir.
1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found
that the court's analysis, "rather than existing Board precedent, better
reflects the principle that discrimination means the unequal treatment
of equal!
s." The majority overruled the Board's decisions in Fleming, Guardian,
and other similar cases to the extent they were inconsistent with its
decision here.

Applying its new standard, the majority found that the employer had
permitted a variety of personal, nonwork-related e-mails, but had never
permitted e-mails to solicit support for a group or organization.
Because two of Prozanski's e-mails were solicitations to support the
union, the employer did not discriminate along Section 7 lines by
applying its e-mail policy to those e-mails. However, the majority
found that a third e-mail by Prozanski was not a solicitation, but
simply a clarification of facts surrounding a recent union event.
Accordingly, the enforcement of the policy with respect to that e-mail
was unlawful.

In dissent, Members Liebman and Walsh argued that "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." Therefore, the dissenters reasoned, Board decisions finding no
Section 7 right to use such employer property are inapplicable. Rather,
pursuant to Republic Aviation, supra, and Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978), the Board's task in cases involving
employee-to-employee communication in the workplace "is to balance the
employees' Section 7 right to communicate with one another against the
employer's right to protect its business interests." In the dissenters'
view, where an employer has given employees access to e-mail in the
workplace for their regular and routine use - as the employer has done -
a ban on "non-job-related solicitations" should be unlawful absent a
showing of specia!
l circumstances. Finding no proof of special circumstances here, the
dissenters would have found that the maintenance of the policy violated
Section 8(a)(1).

Regarding the alleged discriminatory enforcement of the policy, Members
Liebman and Walsh stated that they would adhere to Board precedent,
under which they would find a violation as to all three of Prozanski's
e-mails. They contended that the "discrimination" analysis applied by
the Seventh Circuit and adopted by the majority, which focused on
whether the other activities permitted by the employer were "equal" to
Section 7 activity, was not appropriate in Section 8(a)(1) cases. In
the dissenters' view, the essence of a discriminatory enforcement
violation is interference with the employees' Section 7 rights, and
"[d]iscrimination, when it is present, is relevant simply because it
weakens or exposes as pretextual the employer's business justification"
for prohibiting the activity.

In addition to the issues relating to maintenance and enforcement of the
employer's existing e-mail policy, the Board majority of Chairman
Battista and Members Schaumber and Kirsanow also dismissed an allegation
that the employer violated Section 8(a)(5) and (1) of the Act by
insisting on a bargaining proposal that would prohibit use of the e-mail
system for "union business." Without passing on whether the proposal
was unlawful, the majority found insufficient evidence that the employer
had "insisted" on the proposal. In dissent, Members Liebman and Walsh
found that the evidence as a whole did show "insistence," and that the
proposal was an illegal codification of a discriminatory practice of
allowing e-mail use for a broad range of nonwork-related messages, but
not for union-related messages.

The Board also unanimously affirmed the judge's finding that the
employer violated Section 8(a)(1) by maintaining an overly broad rule,
in the absence of special circumstances, prohibiting employees from
wearing or displaying union insignia while working with the public.

____________________________________________________________

Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
Copyright 2007 by LawMemo, Inc., PO Box 1031, Salem, OR 97308. Phone
503-399-8028.

Omnibus spending bill passsed by Congress

NIH takes a billion buck in 2008 federal budget.From the Chronicle of Higher Education

Winners: Academic Earmarks

From a watchdog group's newsletter

Another Winner: Open-Access Scientific Publishing

The Open Access News

A Loser: Fermi National Lab

Fermi faces lay-offs as budget is slashed by $52 mil.From the Chicago Tribune