National Labor Relations Board Finds That Employers Can Bar Employee Use of Email For Union Purposes

On December 16, 2007, the National Labor Relations Board (NLRB) ruled that employers can bar employees from using company email for union purposes. as long as they also prohibit solicitation for other non-charitable organizations. In a 3–2 decision split along party lines, the board’s Republican majority held that employers can prohibit employees from using company email for union business even if they allow employees to use the email for other personal, non-commercial purposes. For example, an employer could lawfully ban union solicitations as long as it also barred solicitations from commercial interests (e.g., employees selling Avon). But a lawful policy regarding email need not ban solicitations from individuals (e.g., employees selling automobiles) or solicitations from charities (e.g., United Way), said the NLRB.

The case arose in 2000 when a newspaper employee in Eugene, Oregon, who also served as union president, sent fellow employees emails urging them to participate in the union’s entry in a town parade and to wear green to support the union in contract negotiations. In Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, the board drew a distinction between purely personal endeavors and those that benefit an outside organization, without violating the provisions of the National Labor Relations Act that allow employees to form a union and to bargain collectively. For example, an employer could allow employees to use the email system to make baby announcements or invite people to social events without unlawfully discriminating against union communications.

As one might expect, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) panned the NLRB decision of the NLRB’s Republican majority. The AFL-CIO blog, quoting AFL-CIO general counsel Jon Hiatt: “Anyone with e-mail knows this is how employees communicate with each other in today’s workplace. Outrageously, in allowing employers to ban such communications for union purposes, the Bush labor board has again struck at the heart of what the nation’s labor laws were intended to protect—the right of employees to discuss working conditions and other matters of mutual concern.”

AFL-CIO argues that this decision is one of many recent anti-worker rulings. Indeed, the AFL-CIO is so upset with the current National Labor Relations Board over this and what the union says are other recent anti-worker rulings that it has called for Congress to shut down the board. AFL-CIO is not the first to express concern about an anti-worker trend. In a December 12, 2007, letter to Congress, 58 law school professors and other academics expresses concern about what they term “an aggressive campaign to curtail worker rights.”

But former NLRB board member Robert Brame, quoted in a November 21, 2007, National Public Radio program, argues that the board’s recent rulings are “adjustments” to pro-labor NLRB bias. The same NPR story cited a statement from then-board chair Robert Battista that the AFL-CIO protests were “mostly about presidential politics in 2008.”

Still, many non-union groups agree that the email decision harms unions. The Society for Human Resource Management (SHRM) called it a “stinging blow” to unions.

Battista responded to some of those concerns in a December 13, 2007, statement before Congress in which he stressed that the NLRB is statutorily mandated to be neutral between management and labor.

In any case, the NLRB has lacked a quorum since January 1, 2008, with three of its members stepping down in December, including Battista whose term expired the same day the Guard decision was released. In January, Bush re-nominated Battista, a Republican from Michigan, to serve once again as board chair. He also re-nominated Democrat Dennis Walsh of Maryland and nominated newcomer Gerald Morales, a Republican from Arizona. It is not clear when (or whether) the Democratic-led Senate will act on these nominations.

Among those remain on the NLRB is Democrat Wilma Liebman, a former Teamsters lawyer and NLRB staff attorney. In a dissent in the Guard decision, she and Walsh, who also served on the board when the decision was issued, called the NLRB the “Rip Van Winkle of administrative agencies,” and wrote that “only a board that has been asleep for the past 20 years could fail to recognize that email has revolutionized communication both within and outside the workplace.”

But the Republican majority then serving on the board found that email was not employees’ sole means of communication and that denying them access to it for union communications would not violate employees’ right to organize. In its decision and order, the board said that the “email 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 employees rarely or never see each other in person or that they communicate with each other solely by electronic means.” The Republican majority found that employers have a property right in their email systems and do not have to allow employees to use them for non-charitable solicitations even if the employees are rightfully using the system in the due course of their employment.

The National Labor Relations Board is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. The statute guarantees the right of employees to organize and bargain collectively with their employers, to engage in other protected concerted activity with or without a union or to refrain from all such activity. It is not clear to what extent the board’s rulings always apply to public sector employees.

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