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Ross Runkel
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Ross Runkel |
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NLRB - National Labor Relations Board |
The
Guard Publishing Company, d/b/a The Register Guard
Cases 36–CA–8743–1, 36–CA–8849–1, 36–CA–8789–1, and
36–CA–8842–1
December 16, 2007
DECISION
AND ORDER
By
Chairman Battista and members Liebman, Schaumber, Kirsanow, and Walsh
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In this case, we consider several issues relating to employees’ use of their employer’s e-mail system for Section 7 purposes. First, we consider whether the Respondent violated Section 8(a)(1) by maintaining a policy prohibiting the use of e-mail for all “non-job-related solicitations.” Second, we consider whether the Respondent violated Section 8(a)(1) by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails, and Section 8(a)(3) and (1) by disciplining an employee for sending union-related e-mails. Finally, we consider whether the Respondent violated Section 8(a)(5) and (1) by insisting on an allegedly illegal bargaining proposal that would prohibit the use of e-mail for “union business.” After careful consideration, we hold that the Respondent’s employees have no statutory right to use the Respondent’s e-mail system for Section 7 purposes. We therefore find that the Respondent’s policy prohibiting employee use of the system for “non-job-related solicitations” did not violate Section 8(a)(1). With respect to the Respondent’s alleged discriminatory enforcement of the e-mail policy, we have carefully examined Board precedent on this issue. As fully set forth herein, we have decided to modify the Board’s approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction along Section 7 lines. We then address the specific allegations in this case of discriminatory enforcement in accordance with this approach. Finally, we find that the Respondent did not insist on its bargaining proposal prohibiting the use of e-mail for “union business.” Therefore, we dismiss the allegation that the Respondent insisted on an illegal subject in violation of Section 8(a)(5) and (1). i.
background On February 21, 2002,
Administrative Law Judge John J. McCarrick issued the attached decision.
The Respondent and the General Counsel each filed exceptions and a
supporting brief, and the Charging Party filed cross-exceptions and a
supporting brief. The General
Counsel and Charging Party each filed an answering brief to the
Respondent’s exceptions. The
Respondent filed an answering brief to the General Counsel’s exceptions
and a reply brief to the Charging Party’s answering brief. On January 10, 2007, the
National Labor Relations Board issued a notice of oral argument and
invitation to the parties and interested amici curiae to file briefs.
The notice requested that the parties address specific questions
concerning employees’ use of their employer’s e-mail system (or
other computer-based communication systems) to communicate with other
employees about union or other Section 7 matters. The Board’s
questions included, among other things, whether employees have a Section 7
right to use their employer’s e-mail system to communicate with one
another, what standard should govern that determination, and whether an
employer violates the Act if it permits other nonwork-related e-mails but
prohibits e-mails on Section 7 matters. The General Counsel, the Charging Party, the Respondent, and various amici filed briefs.1 On March 27, 2007, the Board held oral argument. The Board has considered the decision and the record in light of the exceptions, briefs, and oral argument and has decided to affirm the judge’s rulings, findings, and conclusions in part,2 to reverse them in part, and to adopt the recommended Order as modified and set forth in full below.3 ii.
facts A. The Respondent’s Communications Systems Policy The Respondent publishes a
newspaper. The In 1996, the Respondent began installing a new computer system, through which all newsroom employees and many (but not all) other unit employees had e-mail access. In October 1996, the Respondent implemented the “Communications Systems Policy” (CSP) at issue here. The policy governed employees’ use of the Respondent’s communications systems, including e-mail. The policy stated, in relevant part:
The Respondent’s employees use
e-mail regularly for work-related matters.
Throughout the relevant time period, the Respondent was aware that
employees also used e-mail to send and receive personal messages.
The record contains evidence of e-mails such as baby announcements,
party invitations, and the occasional offer of sports tickets or request
for services such as dog walking. However,
there is no evidence that the employees used e-mail to solicit support for
or participation in any outside cause or organization other than the B. Prozanski’s E-Mails and Resulting Discipline Suzi Prozanski is a unit employee and the union president. In May and August 2000, Prozanski received two written warnings for sending three e-mails to unit employees at their Register-Guard e-mail addresses. The Respondent contends that the e-mails violated the CSP. 1. May 4, 2000 e-mail The first e-mail involved a
union rally that took place on the afternoon of May 1, 2000.
Earlier that day, Managing Editor Dave Baker sent an e-mail to
employees stating that they should try to leave work early because the
police had notified the Respondent that anarchists might attend the rally.
Employee Bill Bishop sent a reply e-mail to Baker and to many
employees. Bishop’s e-mail
message also attached an e-mail the The rally took place as
scheduled. Afterward,
Prozanski learned that certain statements in Bishop’s e-mail had been
inaccurate. On May 2,
Prozanski told Baker that she wanted to communicate with employees to
“set the record straight.” Baker
told her to wait until he talked to Human Resources Director Cynthia
Walden. On May 4, Prozanski
had not heard back from management about her request, so she told Baker
that she was going to send an e-mail response.
Baker said, “I understand.”4
Prozanski then sent an e-mail entitled, “setting it straight.”
She composed the e-mail
on her break but sent it from her work station. A
few hours later, Baker told Prozanski that she should not have used
company equipment to send the e-mail. Prozanski’s e-mail began: “In the spirit of fairness, I’d like to pass on some information to you. . . . We have discovered that some of the information given to you was incomplete. . . . The Guild would like to set the record straight.” The e-mail then set forth the facts surrounding the call to police about anarchists attending the rally. The e-mail was signed, “Yours in solidarity, Suzi Prozanski.” On May 5, Baker issued Prozanski a written warning for violating the CSP by using e-mail for “conducting Guild business.”5 2. E-Mails on August 14 and 18, 2000 Prozanski received a second
written warning on August 22, 2000, for two e-mails sent on August 14 and
18. The August 14 e-mail
asked employees to wear green to support the C.
Respondent’s Bargaining Proposal About October 25, 2000, during
bargaining, the Respondent presented the
On November 15, 2000, the
Respondent clarified to the On November 16, 2000, the Union
stated that it would not respond to the proposal because the In April 2001, the On April 24, 2001, the iii.
the judge’s decision Noting that an employer may lawfully limit employee use of the employer’s equipment or media, the judge found that the Respondent did not violate Section 8(a)(1) by maintaining the CSP. However, the judge found that the Respondent did violate Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit union-related e-mails while allowing a variety of other nonwork-related e-mails. The judge also found that the Respondent violated Section 8(a)(3) and (1) by disciplining Prozanski for her May 4 and August 14 and 18 e-mails. Finally, the judge found that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26, which the judge found was a codification of the Respondent’s discriminatory practice of allowing personal e-mails but not union-related e-mails. iv.
positions of the parties and amici A. The General Counsel The General Counsel argues that under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), rules limiting employee communication in the workplace should be evaluated by balancing employees’ Section 7 rights and the employer’s interest in maintaining discipline. The General Counsel contends that e-mail cannot neatly be characterized as either “solicitation” or “distribution.” Nevertheless, e-mail has become the most common “gathering place” for communications on work and nonwork issues. Because the employees are rightfully on the employer’s property, the employer does not have an indefeasible interest in banning personal e-mail just because the employer owns the computer system. The General Counsel distinguishes the Board’s decisions that find no Section 7 right to use an employer’s bulletin boards, telephones, and other equipment6 on the basis that those cases did not involve interactive, electronic communications regularly used by employees, nor did they involve equipment used on networks where thousands of communications occur simultaneously. However, the General Counsel concedes that the employer has an interest in limiting employee e-mails to prevent liability for inappropriate content, to protect against system overloads and viruses, to preserve confidentiality, and to maintain productivity. The General Counsel therefore proposes that broad rules prohibiting nonbusiness use of e-mail should be presumptively unlawful, absent a particularized showing of special circumstances. The General Counsel would evaluate other limitations on employee e-mail use (short of a complete ban) on a case-by-case basis. With respect to whether an employer may prohibit employees from sending union-related e-mails while allowing other personal e-mails, the General Counsel notes that this conduct would violate Section 8(a)(1) under current Board precedent. The General Counsel disagrees with the Respondent’s contention that employees communicating about a union are working on behalf of an “outside organization.” B. The Charging Party and Amicus AFL–CIO The Charging Party and AFL–CIO jointly filed a pre-argument brief. They contend that where an employer allows employees to use the e-mail system to communicate with each other on nonbusiness matters generally, the employees are already rightfully on the employer’s property, in the sense that they have been allowed access to the e-mail system. Thus, it is the employer’s management interests, not its property interests, that are implicated. The employer may impose a nondiscriminatory restriction on e-mail communications during working time, but may impose additional restrictions only by showing that they are necessary to further substantial management interests. In a reply brief, the Charging Party argues that if the Board is faced with a conflict between property rights and Section 7 rights, the Board must balance the two sets of interests. The Board should first determine the impact of the restriction on employee rights, and then determine the effect on the employer’s property rights of forbidding the restriction. With respect to enforcement of the CSP, the Charging Party and AFL–CIO argue that, because the Respondent allowed personal use of e-mail generally, the Respondent violated the Act by enforcing the CSP against Prozanski for sending union-related messages. C. The Respondent The Respondent argues that there
is no Section 7 right to use the Respondent’s e-mail system.
E-mail, as part of the computer system, is equipment owned by the
Respondent for the purpose of conducting its business.
The Respondent notes that under Board precedent, an employer may
restrict the nonbusiness use of its equipment.
The Respondent argues that Republic
Aviation and other cases dealing with oral solicitation are
inapposite because they do not involve use of the employer’s equipment.
The Respondent observes that the With respect to whether an
employer has discriminatorily enforced its e-mail prohibition, the
Respondent argues that the correct comparison is not between personal
e-mails and union-related e-mails. Rather,
the Respondent argues that in order to determine whether discriminatory
enforcement has occurred, the Board should examine whether the employer
has banned union-related e-mails but has permitted outside organizations
to use the employer’s equipment to sell products, to distribute
“persuader” literature, to promote organizational meetings, or to
induce group action. The
Respondent argues that under this standard, the enforcement of the CSP
against Prozanski was not discriminatory. D.
Amici Supporting the General Counsel and The National Employment Lawyers Association (NELA) argues that employer e-mail systems are no different from lunchrooms or breakrooms, and that any attempt to proscribe e-mail communications on non-working time would contravene Republic Aviation. With respect to enforcement of the CSP against Prozanski, NELA notes that the Respondent’s CSP prohibits only “non-job-related” solicitations. NELA contends that the union-related e-mails for which Prozanski was disciplined should be considered job-related. The National Workrights
Institute argues that e-mail is becoming the predominant method of
business communication, and that most employer e-mail policies allow some
personal use. However, the
Institute contends that most policies are vague and applied on an ad hoc
basis, and such uncertainty chills employee use of e-mail for Section 7
purposes. Thus, the Institute
argues, banning union-related e-mails, either officially or in practice,
should be deemed to violate Section 8(a)(1). E. Amici Supporting the Respondent Amici supporting the Respondent emphasize the employer’s property interest. They argue that an employer should be permitted to impose nondiscriminatory restrictions on e-mail use, just as the employer may do with respect to its other equipment. The HR Policy Association, the Minnesota Management Attorneys Association, and the United States Chamber of Commerce contend that e-mail does not fit neatly into the Board’s analytical framework for workplace solicitation and distribution. The Employers Group and the HR Policy Association also contend, alternatively, that if the Board does decide to analyze e-mail as either solicitation or distribution, e-mail should be considered more analogous to distribution. The Employers Group and the United States Chamber of Commerce further argue that an employer that does allow personal e-mail use must be permitted to impose reasonable, nondiscriminatory limits on e-mail use, such as those relating to the size of messages, the size of attachments, and the number of recipients. Amici supporting the Respondent generally argue that an employer does not violate the Act simply because it permits some personal e-mails while prohibiting solicitations on behalf of unions or other organizations. v.
discussion For the reasons set forth below, we agree with the judge that the Respondent did not violate Section 8(a)(1) by maintaining the CSP. We also agree with the judge that the Respondent’s enforcement of the CSP with respect to Prozanski’s May 4 e-mail was discriminatory and therefore violated Section 8(a)(1). Likewise, the written warning issued to Prozanski for the May 4 e-mail violated Section 8(a)(3) and (1). However, we reverse the judge and dismiss the allegations that the Respondent’s application of the CSP to Prozanski’s August 14 and 18 e-mails was discriminatory. We also find no 8(a)(3) violation as to Prozanski’s discipline for those e-mails. Finally, we reverse the judge and dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26. A. Maintenance of the CSP The CSP, in relevant part, prohibits employees from using the Respondent’s e-mail system for any “non-job-related solicitations.” Consistent with a long line of cases governing employee use of employer-owned equipment, we find that the employees here had no statutory right to use the Respondent’s e-mail system for Section 7 matters. Therefore, the Respondent did not violate Section 8(a)(1) by maintaining the CSP. An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir. 1983). The Respondent’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.7
Mid-Mountain Foods, 332
NLRB 229, 230 (2000) (no statutory right to use the television in the
respondent’s breakroom to show a prounion campaign video), enfd. 269
F.3d 1075 (D.C. Cir. 2001). See
also Eaton Technologies, 322
NLRB 848, 853 (1997) (“It is well established that there is no statutory
right of employees or a union to use an employer’s bulletin board.”); Champion
International Corp., 303 NLRB 102, 109 (1991) (stating that an
employer has “a basic right to regulate and restrict employee use of
company property” such as a copy machine); Churchill’s
Supermarkets, 285 NLRB 138, 155 (1987) (“[A]n employer ha[s] every
right to restrict the use of company telephones to business-related
conversations. . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988), cert.
denied 490 Our dissenting colleagues, however, contend that this well-settled principle—that employees have no statutory right to use an employer’s equipment or media for Section 7 communications—should not apply to e-mail systems. They argue that the decisions cited above involving employer telephones—Churchill’s Supermarkets and Union Carbide—were decided on discriminatory enforcement grounds, and therefore their language regarding an employer’s right to ban nonbusiness use of its telephones was dicta. The Board, however, reaffirmed Union Carbide in Mid-Mountain Foods, supra, citing it for the specific principle that employees have no statutory right to use an employer’s telephone for non-business purposes. See 332 NLRB at 230. Nevertheless, our dissenting colleagues assert that the issue of employees’ use of their employer’s e-mail system should be analyzed under Republic Aviation v. NLRB, 324 U.S. 793 (1945), by balancing employees’ Section 7 rights and the employer’s interest in maintaining discipline, and that a broad ban on employee nonwork-related e-mail communications should be presumptively unlawful absent a showing of special circumstances. We disagree and find the analytical framework of Republic Aviation inapplicable here. In Republic
Aviation, the employer maintained a general rule prohibiting all
solicitation at any time on the premises.
The employer discharged an employee for soliciting union membership
in the plant by passing out application cards to employees on his own time
during lunch periods. The
Board found that the rule and its enforcement violated Section 8(a)(1),
and the Supreme Court affirmed. The
Court recognized that some “dislocation” of employer property rights
may be necessary in order to safeguard Section 7 rights.
See 324 In contrast to the employer’s
policy at issue in Republic
Aviation, the Respondent’s CSP 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. v.
NLRB, 49 F.3d 317, 318 (7th Cir. 1995); see also
NLRB v. United Steelworkers (Nutone),
357 U.S. 357, 363–364 (1958) (The Act “does not command that labor
organizations as a matter of law, under all circumstances, be protected in
the use of every possible means of reaching the minds of individual
workers, nor that they are entitled to use a medium of communications
simply because the Employer is using it.”).
Republic Aviation
requires the employer to yield its property interests to the extent
necessary to ensure that employees will not be “entirely deprived,”
324 U.S. at 801 fn. 6, 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.10
Indeed, the cases discussed above, in which the Board has found no
Section 7 right to use an employer’s equipment, were decided long after Republic
Aviation and have been upheld by the courts.
See, e.g., NLRB v. Southwire
Co., 801 F.2d 1252, 1256 (11th Cir. 1986) (no statutory right to use
an employer’s bulletin board); Union
Carbide Corp. v. NLRB, 714 F.2d 657, 663 (6th Cir. 1983) (“As
recognized by the ALJ, Union Carbide unquestionably
had the right to regulate and restrict employee use of company
property.”) (emphasis in original). The dissent contends that
because the employees here are already rightfully on the Respondent’s
premises, only the Respondent’s managerial interests—and not its
property interests—are at stake. That
would be true if the issue here concerned customary, face-to-face
solicitation and distribution, activities that involve only the
employees’ own conduct during nonwork time and do not involve use of the
employer’s equipment. Being
rightfully on the premises, however, confers no additional right on
employees to use the employer’s equipment for Section 7 purposes
regardless of whether the employees are authorized to use that equipment
for work purposes.11 The dissent contends that e-mail has revolutionized business and personal communications and that, by failing to carve out an exception for it to settled principles regarding use of employer property, we are failing to adapt the Act to the changing patterns of industrial life. The dissent attempts to distinguish use of e-mail from other communication equipment based on e-mail’s interactive nature and its ability to process thousands of communications simultaneously. We recognize that e-mail has, of course, had a substantial impact on how people communicate, both at and away from the workplace. Moreover, e-mail has some differences from as well as some similarities to other communications methods, such as telephone systems. For example, as the dissent points out, transmission of an e-mail message, unlike a telephone conversation, does not normally “tie up” the line and prevent the simultaneous transmission of messages by others. On the other hand, e-mail messages are similar to telephone calls in many ways. Both enable virtually instant communication regardless of distance, both are transmitted electronically, usually through wires (sometimes the very same fiber-optic cables) over complex networks, and both require specialized electronic devices for their transmission. Although the widespread use of telephone systems has greatly impacted business communications, the Board has never found that employees have a general right to use their employer’s telephone system for Section 7 communications. In any event, regardless of the extent to which communication by e-mail systems is similar to or different from communication using other devices or systems, it is clear that use of the Respondent’s e-mail system has not eliminated face-to-face communication among the Respondent’s employees or reduced such communication to an insignificant level. Indeed, there is no contention in this case that the Respondent’s employees rarely or never see each other in person or that they communicate with each other solely by electronic means. Thus, unlike our dissenting colleagues, we find that 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 and that employee use of the Respondent’s e-mail system for Section 7 purposes must therefore be mandated. Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.12 Accordingly, we hold that the Respondent may lawfully bar employees’ nonwork-related use of its e-mail system, unless the Respondent acts in a manner that discriminates against Section 7 activity.13 As the CSP on its face does not discriminate against Section 7 activity, we find that the Respondent did not violate Section 8(a)(1) by maintaining the CSP. B. Alleged Discriminatory Enforcement of the CSP The judge found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit Prozanski’s union-related e-mails while allowing other nonwork-related e-mails. We affirm the violation as to Prozanski’s May 4 e-mail, but reverse and dismiss as to her August e-mails. In doing so, we modify Board law concerning discriminatory enforcement.14 1.
The appropriate analysis for alleged In finding that the Respondent
discriminatorily enforced the CSP, the judge relied on evidence that the
Respondent had permitted employees to use e-mail for various personal
messages. Specifically, the
record shows that the Respondent permitted e-mails such as jokes, baby
announcements, party invitations, and the occasional offer of sports
tickets or request for services such as dog walking.15
However, there is no evidence that the Respondent allowed employees
(or anyone else) to use e-mail to solicit support for or participation in
any outside cause or organization other than the Citing Fleming Co., 336 NLRB 192 (2001), enf. denied 349 F.3d 968 (7th Cir. 2003), the judge found that “[i]f an employer allows employees to use its communications equipment for nonwork related purposes, it may not validly prohibit employee use of communications equipment for Section 7 purposes.” We agree with the judge that the Board’s decision in Fleming would support that proposition. However, having carefully examined current precedent, we find that the Board’s approach in Fleming and other similar cases fails to adequately examine whether the employer’s conduct discriminated against Section 7 activity. In Fleming,
the Board held that the employer violated Section 8(a)(1) by removing
union literature from a bulletin board because the employer had allowed
“a wide range of personal postings” including wedding announcements,
birthday cards, and notices selling personal property such as cars and a
television. There was no
evidence that the employer had allowed postings for any outside clubs or
organizations. The Seventh Circuit denied
enforcement in both cases. Fleming,
supra, 349 F.3d at 968; Guardian,
supra, 49 F.3d at 317. In Guardian,
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).” In Fleming, the court reaffirmed its decision in Guardian and further stated: Just
as we have recognized for-sale notices as a category of notices distinct
from organizational notices (which would include union postings), we can
now add the category of personal postings.
The ALJ’s factual finding that Fleming did not allow the posting
of organizational material on its bulletin boards does not support the
conclusion that Fleming violated Section 8(a)(1) by prohibiting the
posting of union materials. 349 F.3d at 975. 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.17
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.18
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 The dissent contends that our analysis is misplaced because, in 8(a)(1) cases, discrimination is not the essence of the violation. Rather, the dissent asserts that discrimination is relevant in 8(a)(1) cases merely because it weakens or exposes as pretextual the employer’s business justification for its actions. In our view, the dissent overlooks the Supreme Court’s inhospitable response to this theory and too readily writes off discrimination as the essential basis of many 8(a)(1) violations. The dissent argues that denying
employees access to the employer’s e-mail system for union solicitations
while permitting access for other types of messages undermines the
employer’s business justification and constitutes discrimination.
This argument is at odds with Supreme Court precedent.
In NLRB v. Steelworkers,
357 U.S. 357 (1958), the Court reviewed the Board’s finding in Avondale
Mills, 115 NLRB 840 (1956), that the employer violated Section 8(a)(1)
when it denied employees worktime access to their coworkers for union
solicitation while permitting supervisors to engage in antiunion
solicitation on working time. Even
though supervisors and employees were not similarly situated, the Board
found the employer’s rule discriminatory because it diminished the
employees’ ability to communicate their organizational message and the
employer’s exception for supervisors belied the working-time-is-for-work
justification. It is not surprising, therefore,
that the dissent fails to acknowledge that many decisions require actual
discrimination. For example,
as the Board noted in Salmon Run
Shopping Center, 348 NLRB No. 31 (2006), the Supreme Court has held
that “an employer violates 8(a)(1) of the Act by prohibiting nonemployee
distribution of union literature if its actions ‘discriminate against
the union by allowing other distribution.’” Similarly, in To be sure, the cases on which the dissent relies include language suggesting that the employers’ unlawful, discriminatory conduct tended to undermine their asserted business justifications.20 However, the presence of such language in those cases does not negate the many cases that find discriminatory conduct violative of Section 8(a)(1) purely on the basis of the conduct’s discriminatory nature. We therefore adopt the position of the court in Guardian and Fleming that unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status, and we shall apply this view in the present case and in future cases.21 Accordingly, in determining whether the Respondent discriminatorily enforced the CSP, we must examine the types of e-mails allowed by the Respondent and ask whether they show discrimination along Section 7 lines.22 2. Application of the standard Prozanski’s August 14 e-mail
urged all employees to wear green to support the Prozanski’s May 4 e-mail,
however, was not a solicitation. It
did not call for action; it simply clarified the facts surrounding the C. The 8(a)(3) Allegations We agree with the judge that the May 5 warning to Prozanski violated Section 8(a)(3) and (1). Contrary to the judge, however, we find it unnecessary to engage in a Wright Line26 analysis. Wright Line is appropriately used in cases “turning on employer motivation.” 251 NLRB at 1089. A Wright Line analysis is not appropriate where the conduct for which the employer claims to have disciplined the employee was union or other protected activity. See St. Joseph’s Hospital, 337 NLRB 94, 95 (2001) (warning for displaying union-related screen saver violated 8(a)(3) where employer allowed other nonwork-related screen savers), enfd. 55 Fed. Appx. 902 (11th Cir. 2002); Saia Motor Freight Line, Inc., 333 NLRB 784, 785 (2001) (8(a)(3) violation found where employee was disciplined for “distributing union literature”). Here, the May 5 warning stated that Prozanski “used the company’s e-mail system expressly for the purpose of conducting Guild business” and that this violated the CSP. Thus, it is clear from the warning itself that the Respondent disciplined Prozanski for sending a union-related e-mail. The issue is whether Prozanski lost the protection of the Act by using the Respondent’s e-mail system to send the message. With respect to the May 4 e-mail, she did not. As explained above, although there is no Section 7 right to use an employer’s e-mail system, there is a Section 7 right to be free from discriminatory treatment. See St. Joseph’s Hospital, supra at 95. The Respondent acted discriminatorily in applying the CSP to Prozanski’s May 4 e-mail. Accordingly, the May 5 warning to Prozanski for sending that e-mail violated Section 8(a)(3) and (1). However, we reverse the judge and dismiss the allegation that the August 22 warning violated Section 8(a)(3) and (1). That warning was issued in response to Prozanski’s August 14 and 18 e-mails. We have found above that the Respondent’s application of the CSP to prohibit those e-mails did not discriminate along Section 7 lines. Prozanski’s conduct was therefore unprotected, and the August 22 discipline was lawful. D. The 8(a)(5) Allegation The judge found that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26, which the judge found was an unlawful bargaining proposal. We reverse. In doing so, we find it unnecessary to decide whether counterproposal 26 was unlawful on its face. Rather, we find the evidence insufficient to show that the Respondent insisted on the proposal. A party violates its duty to
bargain in good faith by insisting on an unlawful proposal.
See, e.g., Teamsters Local
20 ( Here, contrary to the dissent,
we find no proof of such insistence.
The Amended
Conclusions of Law 1. Delete the words “and August 22” from the judge’s Conclusion of Law 2. 2. Delete the judge’s Conclusion of Law 3. ORDER The National Labor Relations
Board orders that the Respondent, The Guard Publishing Company d/b/a The
Register-Guard, 1. Cease and desist from (a) Discriminatorily prohibiting employees from using the Respondent’s electronic communications systems to send union-related messages. (b) Maintaining an overly broad rule that prohibits employees from wearing or displaying union insignia while working with customers. (c) Issuing written warnings to, or otherwise discriminating against, any employee for supporting the Eugene Newspaper Guild, CWA Local 37194 or any other labor organization. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the rule prohibiting circulation department employees from wearing or displaying union insignia while working with customers. (b) Within 14 days from the date of this Order, rescind the unlawful warning issued to Suzi Prozanski on May 5, 2000, remove from its files any reference to the unlawful warning, and within 3 days thereafter notify Prozanski in writing that this has been done and that the warning will not be used against her in any way. (c) Within 14 days after service
by the Region, post at its facility in (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply with this Order. It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, ______________________________________ Robert J. Battista, Chairman ______________________________________ Peter C. Schaumber, Member ______________________________________ Peter N. Kirsanow, Member (seal)
National Labor Relations
Board Members Liebman and Walsh, dissenting in part. 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.1 i.
facts A. The Respondent’s Communications Systems Policy Since 1997, the Respondent has provided computer and e-mail access to the vast majority of its 155 unit employees. Numerous employees testified that they spend large portions of their workday on the computer, that they use e-mail regularly, and that to some extent it has replaced in-person communication.2 The principal issues in this case revolve around a Communications Systems Policy (CSP) implemented by the Respondent. The CSP governs employee use of the Respondent’s communications systems, including e-mail. It states in relevant part: Company communication 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 solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations. [Emphasis supplied.] Except with respect to union activity, however, the CSP was honored (and enforced) in the breach. In addition to using e-mail regularly for work-related matters, the Respondent’s employees, with the Respondent’s knowledge and tacit approval, also used e-mail to send and receive nonwork-related messages. For example, the record contains hard copies of e-mails such as baby announcements, party invitations, a request for a dog walker, and offers of sports tickets. Employees also testified that they used e-mail for such matters as making lunch plans, disseminating jokes, keeping in touch with friends and relatives, and organizing a poker group. B.
The Respondent’s Discipline of Suzi Prozanski for Suzi Prozanski is a unit
employee and the On August 14 and 18, Prozanski
sent two more e-mails to unit employees at their Register-Guard e-mail
addresses. However, she
composed and sent these messages from the Other than the warnings to
Prozanski and a warning to one other employee, Bill Bishop, there is no
clear evidence that the CSP was enforced against any other employees.
Managing Editor Dave Baker, Prozanski’s supervisor, testified
that he had received numerous nonwork-related e-mails from employees but
had never disciplined anyone other than Prozanski and Bishop.4 C.
The Respondent’s Bargaining Proposal to Prohibit The parties’ collective-bargaining agreement expired on April 30, 1999. In January 1999, they began negotiating for a successor agreement. Negotiations continued through the time of the 2001 hearing. On October 25, 2000, at the end
of a bargaining session, the Respondent presented the The electronic communications systems are the property of the Employer and are provided for business use only. They may not be used for union business. There was no discussion of the proposal that day. The parties met again the next day, but did not discuss counterproposal 26. On November 15, around the time of their next bargaining session, the Respondent clarified in writing that counterproposal 26 “only prohibits use of the systems for union business” [emphasis in original]. The Respondent stated that its existing CSP “will govern the use of systems in situations ‘other than’ union business.” On November 16, the On April 9, 2001, the The Respondent provided a
written response on April 21. The
response stated in part: “It
is unfortunate that you have decided to create a legal workshop on this
issue. Until your unfair
labor practice charge was dismissed you refused to even discuss our
proposal.” The response
further stated that, “as a general rule,” the proposal would apply to
“all union business” and to all unit employees as well as union
officers. It stated that the
Respondent was not asking the union to waive employees’ rights to
decertify the That same day, the parties held
a bargaining session at which the Respondent’s intended scope of
counterproposal 26 was discussed further.
The After the April 21 session,
there is no evidence that the Respondent provided the ii.
discussion A. Maintenance of the CSP 1.
Legal framework governing Section 7 communica- The General Counsel contends that the CSP’s prohibition on “non-job-related solicitations” is unlawfully overbroad and violates Section 8(a)(1). The judge dismissed that allegation, and the majority affirms the dismissal. We dissent. The issue in an 8(a)(1) case is
whether the employer’s conduct interferes with Section 7 rights.
If so, the employer must demonstrate a legitimate business reason
that outweighs the interference. See,
e.g., Caesar’s Palace, 336
NLRB 271, 272 fn. 6 (2001); Jeannette
Corp., 532 F.2d 916, 918 (3d Cir. 1976). It is intuitively obvious that
the workplace is “uniquely appropriate” for Section 7 activity.
NLRB v. Magnavox Co. of
Tennessee, 415 Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945), is the seminal case
balancing those interests with respect to oral solicitation in the
workplace. The employer in Republic
Aviation maintained a rule prohibiting solicitation anywhere on
company property and discharged an employee for soliciting for the union
during nonworking time. The
Board adopted a presumption that restricting oral solicitation on
nonworking time was unlawful, absent special circumstances.
The Supreme Court affirmed the Board’s finding that the
employer’s rule and its enforcement violated Section 8(a)(1).
Although the solicitation occurred on the employer’s property,
the Court found that an insufficient justification to allow the employer
to prohibit it. Rather, the
Court endorsed the Board’s reasoning that “[i]t is not every
interference with property rights that is within the Fifth Amendment. . .
. Inconvenience or even
some dislocation of property rights, may be necessary in order to
safeguard the right to collective bargaining.” 324
Thus, the presumption adopted in
Republic Aviation vindicates
the right of employees to communicate in the workplace regarding Section 7
matters, subject to the employer’s right to maintain production and
discipline. Although the
majority correctly notes that the rule in Republic
Aviation itself involved a complete ban on solicitation on the
employer’s premises, the Board and courts have long since applied Republic
Aviation’s principles to lesser restrictions on employee speech.
See, e.g., Beth Israel,
437 The Supreme Court struck quite a
different balance in cases involving nonemployees seeking to communicate
with employees on the employer’s premises.
In a case involving distribution of union literature on an
employer’s property by nonemployee union organizers, the Court
emphasized that “[a]ccommodation” between Section 7 rights and
employer property rights “must be obtained with as little destruction of
one as is consistent with the maintenance of the other.”
NLRB v. Babcock & Wilcox,
351 In short, the Board and courts have long protected employees’ rights to engage in Section 7 communications at the workplace, even though the employees are on the employer’s “property.” 2.
The Respondent’s prohibition on all “non-job- Applying the foregoing principles, the General Counsel contends that employer rules restricting employee e-mail use must be evaluated under Republic Aviation, and that broad bans on employee e-mail use should be presumptively unlawful. The General Counsel emphasizes that e-mail has become the “natural gathering place” for employees to communicate in the workplace,5 and that e-mail sent and received on computers issued to employees for their use is not analogous to employer “equipment” such as bulletin boards, photocopiers, and public address systems. The majority, however, finds the Republic Aviation framework inapplicable. Emphasizing the employer’s “property” interest in its e-mail system, the majority reasons that, absent discriminatory treatment, employees have no Section 7 right to use employer personal property such as bulletin boards, television sets, and telephones. According to the majority, Republic Aviation ensures only that employees will not be “entirely deprived” of the ability to engage in any Section 7 communications in the workplace, but otherwise does not entitle employees to use their employer’s equipment. Here, the majority asserts, the employees had other means of communication available. We disagree.
Indeed, we find that the General Counsel’s approach is manifestly
better suited to the role of e-mail in the modern workplace.
“The responsibility to adapt the Act to changing patterns of
industrial life is entrusted to the Board.”
NLRB v. J. Weingarten,
420 E-mail has dramatically changed,
and is continuing to change, how people communicate at work.
According to a 2004 survey of 840 |