Friday, December 21, 2007

Major NLRB Internet and Discrimination Decision

Nlrb Forgive me both for the length and tenor of this post.  This decision struck a knife into two issues that I've written about recently (including one that that just went through what I thought was the final read).

The NLRB, in another 3-2, decision has just hit a two-for-one in an opinion that I can only describe as awful.  Register-Guard, 351 N.L.R.B. No. 70 (Dec. 16, 2007), involved an employer's policy against non-job-related emails that was only enforced against union messages.  The majority, in finding for the employer--surprise--took an overly restrictive view on the importance of emails, which was no shock given the oral argument.  However, it also decided to reverse its precedent with regard to discriminatory conduct under Section 8(a)(1) and adopt a nonsensical position that only the Seventh Circuit has used.  First, with regard to the email policy, the majority concluded that:

An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB. The Respondent’s [employer's] communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.

Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory. . .  .

In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s [policy] does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk. What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.” Guardian Industries Corp. . . . Republic Aviation requires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” of their ability to engage in Section 7 communications in the workplace on their own time. It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.

The majority's analysis here is weak.  The personal property cases that the majority cites to over and over in its decision are very thin reeds, as none of them engaged in any real analysis of the issue (it's a classic string of "it's well-established that . . ." statements which, if you keep going back, are based on little more than an un-cited throwaway line by an ALJ).  Moreover, the idea that an employer can control use of its personal property any way it chooses is counter to property law.  As chattel, personal property has less protection than real property (which the Supreme Court has held that employer's don't have full control of vis a vis labor rights). The NLRB's distinguishing of Republic Aviation also sounds disturbingly like the Supreme Court's nonemployee solicitation analysis in Lechmere--which even the Court took pains to differentiate from the employee solicitation context of Republican Aviation.  Finally, as I've written about at great length, I could not disagree more with the majority's rejection of the dissent's argument that email has so dramatically effected the workplace that it's worth a special rule.  The dissent would adopt a rule that would presume that restrictions on email use are unlawful absent special circumstances.  I'm obviously supportive, given that I argued for that exact rule.

As for the discrimination issue.  The circuit courts have been all over the place in trying to define what "discrimination" means in the solicitation context.  To quote my own summary of the various definitions of discrimination, which include:  "giving access to all groups but unions; allowing only work-related or isolated charitable solicitations; allowing all charitable solicitations; and favoring one union over another or allowing distributions by employers, but not unions."  The Board adopted the last of these, which is the Seventh Circuit's approach (and which the Board had previously refused to follow under its non-acquiescence policy):

In Guardian Industries, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).”  Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. The court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale. The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.” The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.” 

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. 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

I'll give you another example.  Under the Board's new rule, an employer could create a free speech area, allowing any speech--racist, communist, religious, etc.--except for union-related speech.  This makes no sense at all, particularly because, as the dissent stresses, Section 8(a)(1) prohibits employer actions that reasonably tend to interfere with employees' exercise of their Section 7 rights.  I can't imagine an employee that would not feel chilled in their ability to engage in collective action by an employer's open hostility to all union-related speech.  When I mention this definition of discrimination in class (which has a large proportion of conservative students) they all laugh.  Unfortunately, it's not particularly funny anymore, because this ridiculous rule will now be applied nationally.

I've only given the case a quick read, so I may comment more later.  Note that this came out late on the Friday before Christmas and just after the Senate hearing on the NLRB's recent pro-employer decisions.  I suspect that the timing no accident, which make this embarrassment of a decision even more so.  The final result of all this is that no new Board members will be confirmed by the Senate until the next presidential election, leaving only two members on the Board.  Normally, even with a Board I disagree with, I consider that a problem for the overall enforcement of the NLRA.  But at this point, I can only consider it an act of mercy upon the statute.

-JH

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» NLRB: Employers May Limit Use of Employees' Use of E-mail For "Non Job-Related Solicitations" from Connecticut Employment Law Blog
On Friday afternoon -- conveniently right before a long holiday weekend -- the NLRB dropped a significant decision on an important issue -- whether an employer may set up a policy that, in turn, prohibits employees from using the employer's... [Read More]

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Comments

Jeff...I couldn't agree more. The overreaching by this Board has become so dramatic that almost every reasonable labor relations analyst I have ever known is walking around shaking his or her head. Nevertheless, I think the absurd decisions really help. With prior Boards great damage was often done under the radar. Unless one practiced in the area it was hard to appreciate the damage that micro-tinkering could do. Now, the cat is completely out of the bag and believe me (to borrow from the late Frank Zappa commenting upon the state of jazz music), the labor movement is not dead, it just smells funny.

Posted by: Michael Duff | Dec 22, 2007 12:19:47 PM

I haven't read an NLRB decision since 1996, so this is close to one of those "IANAL" comments, but I actually found the majority view pretty persuasive.

I agree that an e-mail account is like other business property. As I understand it, this doesn't block employees from using e-mail; they can just use personal accounts instead of work accounts. That is, if I understand the rule, it's against use of work *accounts* not e-mail at work using the employer's network. If I'm right about that, it seems pretty sensible to me: Getting a personal yahoo or gmail account is trivially easy, and most people have them.

I also thought the majority's view of discrimination made sense. I tend to think of quality-of-life message boards where employees sell personal items or celebrate birthdays as being close to work-related, as they're trying to establish the workplace as a comfortable "home" of a place. That seems pretty different from messages about union organizing.

Posted by: Orin Kerr | Dec 22, 2007 2:54:16 PM

So you think companies give up their property rights where unions are concerned? Can employees of a sign-making company make their "on strike" signs using company equipment?

I'm no lawyer, and I don't play one on tv, but the ruling as you described it seems eminently reasonable to me.

And I'm a public school teacher in pro-union California.

Posted by: Darren | Dec 22, 2007 4:36:06 PM

Looks fair to me. The company invested money in the network and owns it and if it banishes only union or organization workers from using it, so be it. All those other topics that you referenced are of no direct interest to the company since only those who organize unions would have a net negative impact on the company itself and thus should be restricted from attempting to use network for destructive purposes.

Posted by: Curtis | Dec 22, 2007 8:54:58 PM

I'm a contract worker at a firm that completely prohibits internet and email use by contract workers, even when necessary for my professional duties, whereas there are no significant restrictions on direct employee usage of the internet. I am even prohibited from contacting my recruiter by email, having to call him from the company's HR office.
Unfortunately, I'm can't say as I'm surprised by the NLRB's decision. I'm not a big fan of unions, but this kind of action may bring a serious backlash, especially if the nation elects a liberal President.

Posted by: Don | Dec 23, 2007 3:57:57 AM

Jeff. Great post, and I also second Michael Duff's comment that we should see these in context with the many other anti-union NLRB decisions by the Bush Board. See also the thread on this on Prawfsblog.

Posted by: Joseph Slater | Dec 23, 2007 8:34:46 AM

You said:

“I'll give you another example. Under the Board's new rule, an employer could create a free speech area, allowing any speech--racist, communist, religious, etc.--except for union-related speech. This makes no sense at all…..”.
Aw, yeah, it makes no sense at all. The whole sentence starting with “I’ll give you…” makes no sense. Why would an employer go out of his way to create a “free speech area”? You can create crazy nonsensical examples all day long, but let’s not make public policy based on them. Why not keep it to real world examples? How is providing a bulletin board for “for sale or swap” notices discriminatory to unions? Why should organizations, whether they be pro-union, anti-union, Red Cross, the United Way (whom I have a particular aversion to), or anyone in-between be permitted to use the facilities for organization? As a blue-collar employee, I certainly don’t care to see business facilities used in that manner. If I want to organize, I’ll do it elsewhere. (However, my belief has always been that if my skills get so bad that I need a union to make a decent wage, then I should update/improve my skills. The union folk I do know seem to think the rest of us owe them a living, and they refuse to do anything to improve their skills or their education. Personally, I’m tired of subsidizing, through tariffs and government secured pensions, their substandard products.)


You go on:
“I can't imagine an employee that would not feel chilled in their ability to engage in collective action by an employer's open hostility to all union-related speech. “ Well, I can’t imagine an employee who’s not chilled by an employer’s hostility to union-related speech, regardless of whether it’s open or suppressed. So what? Does an employee have a right to feel her employer welcomes her union activities? Sorry, but the employer is not a potted plant in all this. If being “chilled” by an employer’s open hostility to unions is all that’s necessary for a court to override a business decision and hand a victory to the unions, then business might just as well turn over their decision making process to the unions. God forbid that the NLRB not create a climate in which business capitulates to unions without a fight, or that union activities not be allowed to insinuate every aspect of a corporation’s life, right down to the bulletin board outside the office.

I’m quite sure the conservative students in your class were laughing. I certainly would have been. Your “example” is a typical example of what liberal scholasticism has become. You’re not only comparing oranges to apples, you’re comparing eggs to them too.

Posted by: Randy Skender | Dec 23, 2007 10:54:44 AM

Coming from the point of view of an information technology architect, and even system administrator at various times, I fully agree that corporate e-mail systems are resources that the employer has a right to protect. Employers, for instance, have every right to block e-mail from certain web sites for fear of viruses. This blocking, by the way, may be performed by automated or even, on occasion, personal scans of e-mail content and not just its originating URL (which can be spoofed). E-mail requires disk space, which will always be limited (e-mail, like fish, always seem to grow to fill the size of the container they live in). Most corporations simply limit the total size of one's mailbox and force the user to make choices of which e-mails to keep and which to archive or expunge. Sure, this flies in the face of such legislation such as Sarbanes-Oxley, but this right to keep e-mail servers functioning is just one of those realities of life. In the largest of corporations, server space is simply friggin' expensive mostly because of the very redundancy required to remain faithful to legislation such as SOX.

Then there is the practical side of this law: Why, on God's Blue Earth, would anyone want to use a corporate e-mail system for Union activities? There is no way you can guarantee (heck, legally) that the mail isn't being read by management for the purpose of gaining pre-emptive intelligence. How can one ever guarantee that the Union-related e-mail wasn't simply deleted? ("Oops, it got caught in the spam filter!" or "Oh, that site was on the black list? Sorry.")

Of course, employees can still use corporate Internet access to use non-corporate e-mail systems such as Hotmail, which are free.

A colleague of mine was recently called upon by Homeland Security for a little fact-finding. They wanted to know what the impact would be of various regulations to improve software security everywhere in this nation. My colleague's answer was that forcing DoD-like security down the corporate throat would sound nice and secure, it would prove to be a cost burden an order of magnitude or greater than the cost of SOX compliance. As project managers of IT system know, feature creep is one sure way to kill the viability of any software project. Security is a feature. Redundancy is a feature. Capacity is a feature. Each feature costs. Each feature consumes resources. In software, unfortunately, costs associated with each new feature do not rise in a simple linear manner. Features in software are interdependent upon each other, and feature creep can easily increase costs geometrically.

For the sake of our economy, keep legislation out of IT whenever possible. Force alternatives whenever practical.

Posted by: Nicole Tedesco | Dec 24, 2007 6:34:17 AM

Happy Holidays. Calm down. It is sad to see such absurd sensationalism among "academics." Instead of following the herd, try participating with amicus briefs or counsel to a party. At least weigh-in instead of whining from the sidelines. For the record, many assess the recent decisions quite differently. Noticeable too were the labor law professors from top schools who didn't sign (a/k/a pander to) the recent letters - all well timed with the AFL orchestrated symphony.

Posted by: JR | Dec 24, 2007 8:50:27 AM

I think a brief primer is in order. Since the early days of the NLRA, there has been a tension between employers' right to control their property/run their business and employees' rights under the Act. One of the more crucial of these latter rights is employees' ability to learn about and discuss unionization, as it is necessary for them to make a free and fair choice about whether to unionize or not (and I do believe the ability to make a fully informed choice not to unionize is important). Recently, some of the biggest issues have involved cases where nonemployee union organizers want access to an employer's property in order to give information to employees. This case, however, is different (or at least should be, although some of the language I quoted in the original post suggests otherwise).

What this case involves is employers' ability to prohibit employee communications about unionization. The big case in this area is the Supreme Court's 1945 decision, Republic Aviation. In that case, the Court upheld a Board rule stating that employers cannot totally ban employee union solicitation at work. Employers can place certain time, place, and manner restrictions, but they cannot impose a total ban. Note that this infringes on employer's property rights, as that right includes the ability to restrict use on one's property. The Court held instead that there must be a balance between employers' property rights and employees' right to discuss unionization (part of the rationale is the fact that both of those rights are solely conferred by the state, so there is no inherent reason for favoring one over the other).

My proposal, and the dissent's, would simply be to continue to use the Republic Aviation balancing test for electronic communications. Particularly in workplaces where employees use computers frequently for nonwork matters, there is little cost to the employer in allowing union communications (little legitimate cost, with union animus not being legitimate). On the other side of the balance, employees often use computers as their primary source of communication, so preventing them from using computers to discuss unionization is significant. The impact is even greater given that the Board has essentially allowed employers to completely bar unions from the workplace--the Internet is one of the few, if not only, efficient means of reaching workers. Of course, if the employer has a valid reason for limiting use, for instance a defense contractor dealing with sensitive information, further restrictions are justified. It is also important to note that the decision would allow an employer to limit use of all use of company computers and internet systems--so, if your internet access is via a company system (even if you're using hotmail) or with a company computer, this case affects you.

As for the discrimination issue. Section 8(a)(1) of the NLRA makes unlawful any employer conduct that would reasonably tend to interfere with employees' exercise of their NLRA rights. The Board has not read this broadly, but one thing that is clear about the rule is that it doesn't require intent and it involves the same type of balance as Republic Aviation (which was an 8(a)(1) case). To my mind that balance clearly favors employees' NLRA interests in a case where the employer allows all types of personal and outside business communications (such as third party solicitations), but bars all union communications. The employer is obviously disfavoring union messages and isn't really concerned with the use of its property. This is the type of situation in which labor rights should outweigh property rights. I'll also concede that this is a more realistic example; however, my original example, while fanciful, still shows how extreme the Board's decision was in this case. It doesn't matter how much you ratchet down the circumstances--the employer can still ban use of their computer system.

Finally, I did weigh in on this case. As my self-promotion has noted before, I was writing on this topic before the Board announced their oral argument in Register-Guard. After that announcement, I provided all the Board members with two different versions of my article. Indeed, I don't know if there's a connection, but much of the dissent reflected things I said in my article.

Posted by: Jeff Hirsch | Dec 24, 2007 7:56:28 PM

Again, I agree with Jeff and Matt. The point is the definition of "discrimination" -- note that the employer here permits other "non-business" uses of e-mail, but does not permit union related e-mails.

The employer has property rights under state common law, but employees have rights under a federal statute to engage in pro-union activities. The NLRA bars discrimination against workers for engaging in union activity [sec 8(a)(3)], and also gives workers an affirmative right to engage in union activities [sec 7 and sec 8(a)(1)]. There are some general balances -- workers can't stop doing their jobs and interrupt other workers who are trying to do their jobs to talk about the union, because of the employer's legitimate, non-discriminatory interest in getting work done. But employees do have the right to do some things on and even with the employer's property, by virtue of their federal statutory rights under the NLRA.

So, suppose an employer says, "I have a legitimate, non-discriminatory interest in barring all non-work related e-mails." If the employer really does bar all non-work related e-mails, the NLRB should, properly, balance the negative effect on the section 7 rights of employees against the employer's legitimate interest in getting the work done, and determine whether the employer's motivation was to discriminate against employees for exercising their right to do union activities.

But if an employer says, "you can use employer e-mail for whatever purposes you want EXCEPT for union activities," that should violate the NLRA, full stop. It's interfering with section 7 rights, and the employer has no legitimate purpose except to discriminate against union activities. That's what the statute expressly forbids.

And I must confess, I don't understand the idea that if a legal academic is not actively participating in a piece of on-going litigation, that academic somehow forfeits their ability to credibly criticize the outcome of that litigation.

Posted by: Joseph Slater | Dec 26, 2007 10:33:52 AM

Reason divorced from history is of limited utility. The reason there is any talk of balancing property rights against union organizational rights (or other "protected concerted" rights) is that some very smart folks figured out several decades ago that it would be better to manage conflict than to attempt to stifle it. Oliver Wendell Holmes had it right - the conflict between labor and capital is perpetual. What is going on now, in my judgment, is the wholesale (no longer so stealthy) undermining of a model to manage conflict. You don't have to be a subtle theoretician to realize that if the model is undermined the conflict will go somewhere else. Those that applaud this either don't believe the conflict exists or think that it does exist but can be easily extirpated. I know the former proposition is incorrect and doubt the latter is correct. Apparently, we're about to find out. And by the way, I litigated these issues for 11 years prior to coming to the academy and was a blue collar worker before that - this is very much a real world discussion about the smash mouth truth.

Posted by: Michael Duff | Dec 27, 2007 3:33:38 PM

Isn't all this discussion about email really about addresses? Almost everyone I know who uses a computer at work has both a work email, and a private email - like from gmail, yahoo or hotmail. And they use the personal/private email for anything that isn't directly related to their work. Even if it were possible, which it isn't, I don't think any employer is talking about preventing the employee from receiving union related, or any other type of non-work related email, over their personal/private email account.

What unions want access to is not so much the work email account, as I understand the practicality of it, but access to the mailing list of work emails - which allows one employee to quickly and easily send a notice of a union meeting to all the correct people. That list is already prepared, with all of the proper email addresses on it. They don't have to hunt down John318NYC@yahoo.com and the rest of them - one quick email to #Associates gets the notice to everyone applicable.

So what unions are asking for here is not so much access to the email account, but the list of work email addresses, which to an employee inside the company, is so easy to access it seems almost valueless. But to the company, it is not.

If you were a recruiter, looking to find someone who could sell sneakers, wouldn't you like a list of everyone in the Nike Sales department? That list wouldn't be valueless - it would have significant value to you - and Nike would be within it's rights to refuse to give it to the recruiter.

Employees have a right to discuss unionization, but the employer is not required to turn over a list of it's employee's addresses, home OR email. But that is precisely what the dissent is asking for.

Posted by: Tor | Dec 28, 2007 7:59:32 AM

Actually, it's about far more than the email addresses. The decision allows employers to bar any employee use of the employer's computers and their computer system. I agree that the decision would be far more palatable if we were just talking about addresses, but we're not.

Also, unions have long had a right to employees' home addresses once the it can show that 30% of employees want an election (Excelsior Underwear rule). In my opinion, unions should have an even lower threshhold for email addresses, as employees' privacy interests are much lower than for their home addresses. But the case didn't raise that issue.

Posted by: Jeff Hirsch | Dec 28, 2007 8:48:45 AM

Employers already had the right to limit employees' use of the employer's email systems to business purposes only. The issue that was brought up in this case was whether it was discriminatory to allow it for certain personal uses, but not for union organizing.

And while unions do have a right to employee's home addresses *after they have demonstrated at least 30% support AND filed a petition* - I saw this case as applying much more to situations where unions do not yet have that support, but would very much like to get that support. And home addresses are much easier to get than email addresses - there exists at least a directory of home addresses. There are many reasons why no comprehensive directory of email addresses exists.

And I would disagree that the privacy interest is lower. E-mail addresses are generally understood by individuals to be private. Corporate email directories are certainly private - companies go to a lot of expense to keep them that way - not to avoid unions, but to protect employees from competitors. What if a disgruntled and unsuccessful organizer used the addresses to sign up for spam? A letter to the post office prevents the delivery of junk mail, but nothing would stop the spammers from quickly rendering the email addresses useless.

And I agree that the case didn't explicitly raise the issue of email addresses, but that is what is at stake. The case involved an employee/union president who worked at the company using a company created email list (probably something like "#All Newsroom") to send several emails. If the union president had the ability to email everyone at their personal email addresses, she probably would have. But any list would be incomplete, as some employees would have refused to provide their email addresses - and those employees were precisely the ones she wanted to communicate with. The only way to do reach the entire unit by email was to use her company computer and a company provided email list.

The heart of this issue is about opt-in and opt-out. Companies say that if employees want to discuss union issues, use your personal addresses to opt-in to the communication. Unions want to take that choice away, and force employees to opt-out of the communications by blocking the emails. Personally, I think opt-out is almost always wrong, whether it is emails from Sears telling me about DOORBUSTERS!!! or a union telling me why I should join.

Posted by: Tor | Dec 28, 2007 10:56:57 AM

The effect that this decision will have on unions is illustrated by one simple example: what happens when a union tries to get employees together for an organizing rally after work hours? Obviously, it's not nearly as effective to send an email to a personal account, in which an employee might not check, as opposed to a work account, which an employee is almost guaranteed to check on a daily (probably hourly) basis.

The bottom line is that this case really boils down to an Excelsior issue, but only in the new media context- union access to employees on the internet for organizing purposes via work email addresses (like Michael Duff noted). While unions may be able to use personal emails of employees after they successfully organize, what do they do when they are trying to gather employee information before and during the organizing stage?

Let's be honest, nowdays, without email addresses of employees, the union really has no shot at a successful organizing drive. If we follow the spirit of the NLRA and Section 7 rights, unions should have access to employer emails for organizing purposes to provide an equal playing field.

Now after the organizing stage, why not just force unions to use personal emails instead of employer emails(which they will certainly do anyway to avoid the employer reading the union's business).

Additionally, there can also be certain size limitations on email and other restrictions placed on the union's privilege to use the employer's email system. If these restrictions are broken, the union should lose the privilege.

Lets be honest, this decision is a pretextual decision that discrimiates against unions and only makes it harder for them to organize new members. It's blatantly obvious.

Forget the antiquated property interest arguement. Join the internet age!!! The NLRB seems like it has been hanging out with the AMPTP too much lately. It too is confused about what to do with new media. The NLRA needs to be adapted to the 21st century!!!

Posted by: labor activist | Dec 28, 2007 1:47:37 PM

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