The purpose of e-mail is to speed communication. That would seem to hold true in the workplace as in any other setting. But if an employer stipulates that union organizing, among other solicitations, is an off-limits topic, does that constitute interference with a worker’s right to organize or join a union? And if it is off-limits, wouldn’t this imply that it’s permissible for the employer to ban organizing altogether, regardless of the medium of communication? The National Labor Relations Board recently ruled on this very issue. And though the case involved an already unionized workplace, its main significance may be the clarification of boundaries for future union organizing drives, especially those involving a card-check process.
On December 16, 2007, the NLRB decided by a 3-2 margin that an employer is justified in barring employees from using its electronic mail system for “non-job-related solicitation.” Relying on decisions by the U.S. Court of Appeals for the 7th Circuit, the board in Guard Publishing Company (351 NLRB, No. 70) effectively rejected an argument by a union local that management violated Sections 7 and 8(a) of the National Labor Relations Act, which protect workers’ organizing rights. The vote occurred along party lines, with the three Republican board members siding with the employer and the two Democrats siding with the union. The ruling was issued on the last day of NLRB Chairman (and Republican) Robert J. Battista’s term. The union, by several accounts, is planning to appeal.
The case originated in Eugene, Oregon at The Register-Guard, a local newspaper owned by Guard Publishing Co. Newsroom and certain other employees belonged to the Eugene Newspaper Guild, an affiliate of the Communications Workers of America (CWA). When Guard Publishing installed its employee e-mail system, it established the following policy:
Company communications systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications systems are not to be used to proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.
The policy did not prohibit all usage unrelated to work. Employees, in fact, regularly e-mailed each other on subjects such as sports tickets, lunch plans, baby announcements and party invitations. But it was common knowledge that union organizing was a banned subject. It was a provision waiting to be tested.
During collective-bargaining talks, the union president had used the e-mail system on three occasions, respectively, to: 1) inform employees about an inaccurate statement in a prior union communication concerning a union rally held the previous week; 2) solicit employees to “wear green” in support of the union’s contract demands; and 3) solicit employees to march with the union in a solidarity rally. The first e-mail was sent from a company-owned computer at work; the second and third were sent from union offices and directed to other employees at Register-Guard e-mail addresses. Management disciplined the union president, an employee, for each e-mail. That included the first message, which involved no solicitation. Sometime thereafter, she took her case to the National Labor Relations Board.
The NLRB ruling last month was a victory for the employer, but not a complete one. The board concluded that the company policy was lawful on its face, and that it was justified in disciplining the union representative. But it also stated that disciplinary action was unlawful to the extent that it punished informative (i.e., non-solicitation) e-mail. As for the first part, employer e-mail systems, the majority opinion stated, operate on the same principle as employer telephone systems, bulletin boards, copiers or television sets. In each case, management’s restriction of information flow is a valid exercise of property rights. The NLRB majority held that because Guard Publishing imposed the same restrictions on its e-mail system as it did on other company facilities, the ban was not an arbitrary act of discrimination or “unequal treatment of equals.” However, the court also argued that management had overstepped its bounds when it punished the union official’s first e-mail, which did not involve solicitation.
The two dissenters operated on a different assumption. They argued that cyberspace, like the real-time workplace, is a “natural gathering place.” As such, communication during non-working hours on any subject should not be barred. Discussing union organizing via e-mail ought to be seen as legitimate as discussing union organizing at a water cooler or inside the employees’ lounge. The employer did not demonstrate legitimate business purposes that outweighed interference with employee rights under the National Labor Relations Act. This wasn’t an easy ruling. To the extent the NLRB upheld an employer’s property rights, it was a sound decision. An e-mail system (software) is as much private property as a computer (hardware), and thus its owner should have the right to determine its content. But at the same time, a court also must focus on how ideas and information are communicated. In other words, the benchmark should be: Is there pressure to join or remain in a union?
It’s entirely likely that the case will induce employers to spell out more clearly the permissible range of employer e-mail communications. But union officials around the nation want to do more than simply talk about organizing. They want to change the rules of organizing to allow for high-pressure communication, especially on a face-to-face basis. Card checks are the very essence of such a solicitation style. With Battista gone, a reconstituted NLRB may well be more receptive to union interests, especially with a 3-2 Democrat majority that would materialize if Hillary Clinton or some other Democrat is elected president this November. (Cohen & Grigsby, 12/28/07; Faegre & Benson, 1/08; Labor and Employment Strategies LLC, 1/04/08; PhysOrg.com, 1/08).