CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, KIRSANOW, AND WALSH: In this case, we consider…
CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, KIRSANOW, AND WALSH: In this case, we consider…
CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, KIRSANOW, AND WALSH: 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. Family, we find that the Respondent did not insist on its bargaining proposal prohibiting the use of email for “union business.” Therefore, we dismiss the ale? ate? at the Respondent insisted on an illegal subject m v10lauon of Section 8(a)(5) and (1).
A. The Respondent's Communications Systems Policy the Respondent publishes a newspaper. The Union represents a unit of about 150 of the Respondent's employees. The parties' last collective-bargaining agreement was in effect from October 16, 1996 though April 30, 1999. When the record closed, the parties were negotiating, but had not yet reached a successor agreement. 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: 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. The Respondent's employees use e-mail regularly for work-related matters. Throughout the relevant time, 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 United Way, for which the Respondent conducted a periodic charitable campaign. B. Polanski’s E-Mails and Resulting Discipline Suzi Polanski is a unit employee and the union president. In May and August 2000, Polanski 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. POSITIONS OF THE PARTIES 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 disciple. 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 employs 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 bulletm 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)(l) 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.” 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 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 Union and employees here have many means of communicating in addition to e-mail. With respect to whether an employer has disImmatonly enforced its e-mail prohibition the despondent argues that the correct comparison. e not between personal e-mails and union-related mails. Rather, the Respondent argues that to determine whether discriminatory enforcement occurred, the Board should examine whether employer has banned union-related e-mails but has permitted outside organizations to use the employer's equipment to sell products to disunite “persuader” literature, to promote ' organizational meet mgs, or to induce group action. The Respondent argues that under this standard the effort cement of the CSP against Posnanski was not desquamatory. ORDER the National Labor Relations Board orders that the Respondent, The Guard Publishing Company d/b/a The Register-Guard, Eugene, Oregon, its officers, agents, successors, and assigns, shall
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 Posnanski on May 5, 2000, remove from its files any reference to the unlawful warning, and within 3 days thereafter notify Posnanski in writing that this has b. een done and that the warning will not be used agamst her in any way
1. What was the employer's policy at issue?
2. Why was the policy challenged?
3. What was the General Counsel's argument?
4. What was the employer-Respondent's argument?
5. What are the implications of the decision?
