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NLRB bombs use of email for union organizing
December 21, 2007 by Ross Runkel at LawMemo
On Chairman Battista's last day in office the NLRB dropped two bombs.
The case: The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007). This was another 3-2 decision, along party lines.
Part one was expected:
An employer does not violate the National Labor Relations Act (NLRA) by maintaining a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations."
This is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.
Part two is a bit more radical:
What happens when an employer allows employees to use emails for some non-work purposes, but forbids email use for organizing purposes? The NLRA prohibits employers from discriminating against union activity? So what does it mean to "discriminate"?
The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and "group" or "organizational" postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court's analysis, "rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals." The majority overruled the Board's decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.
Thus, on the last day in which the Bush Board commanded a majority of the NLRB, it adopted a position that has been discussed for many years, but that had been a definite minority position.
Professor Jeffrey M. Hirsch at Workplace Prof Blog has a lengthy comment on this case - Major NLRB Internet and Discrimination Decision - in which he says "The majority's analysis here is weak" and " This makes no sense at all."
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