Major NLRB Internet and Discrimination Decision

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