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NLRB - National Labor Relations Board 

Report Of The General Counsel
September 1, 1999 through September 30, 2000

NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C.   20570

This report covers selected cases of interest that were decided during the period from September 1, 1999 through September 30, 2000. It discusses cases which were decided upon a request for advice from a Regional Director or on appeal from a Regional Director's dismissal of unfair labor practice charges. In addition, it summarizes cases in which the General Counsel sought and obtained Board authorization to institute injunction proceedings under Section 10(j) of the Act.

________________________

Leonard R. Page

General Counsel

During this period, we considered several cases involving employer limitations on employee use of company computers and E-mail. Our first reported case in this area involved whether the Employer maintained a facially overbroad no-solicitation/no-distribution policy and whether the Employer unlawfully disciplined an employee for violating that and related policies because he sent other employees a Union-related message through the Employer's internal E-mail system.

The Employer employed a group of technicians who initially were not represented by any union. These employees used company E-mail to communicate with each other and management on a daily basis. The Company announced corporate policy through E-mail and placed employee required reading on the E-mail system. Although the technicians use other computer systems for their substantive duties, one employee estimated that he used the E-mail system for about an hour each day.

The Employer maintained a no solicitation/no distribution policy in its employee handbook. The Employer also maintained a "Company Assets" policy which limited employee use of company equipment "only for legitimate business reasons on behalf of the Company." Finally, the Employer also maintained a "Computers and Software" policy which further provided that, "computer software may be used only for Company business ...."

On January 21, 1999, an employee sent his fellow technicians an E-mail message announcing a Board-run election for representation by the Union. In his E-mail, the employee explained that the bargaining unit would be a "stand alone" unit of chemistry technicians, which he characterized as a victory for the Union, and encouraged employees to find out more about the Union before the election. The Union subsequently won the election and the parties later began negotiating an initial collective-bargaining agreement.

When the Employer discovered the employee's message, it verbally warned him that he had violated the Employer's no solicitation/no distribution, Company Assets and Computers and Software policies. The Employer also counseled the employee to not use the Company's E-mail system for union business in the future.

We decided to issue a Section 8(a)(1) complaint alleging that under the Board and the Supreme Court's long-standing rules, the Employer maintained a facially overbroad no solicitation/no distribution policy. We first assessed the facial validity of the Employer's no solicitation/no distribution policy within the well-recognized frameworks for analyzing policies limiting (1) employees' solicitation of fellow employees and (2) the distribution of written materials.

In Republic Aviation, 51 NLRB 1186 (1943), enfd. 142 F.2d 193 (2d Cir. 1944), affd. 324 U.S. 793 (1945), the employer discharged an employee for wearing a "union steward" button at work in violation of the employer's non-discriminatory rule prohibiting all solicitation in the plant. The Board held that the no-solicitation rule and the resulting discipline were inimical to the employees' Section 7 organizational rights. In striking a balance between employer and employee rights, the Board articulated several important principles in these cases, affirmed by the Supreme Court. First, the Board and Court made it clear that an employer's managerial or property rights are not, in themselves, dispositive of the lawfulness of even a non-discriminatory rule. Thus, "[i]nconvenience, or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining." 324 U.S. at 802 n.8 (noting the Board’s quotation from NLRB v. Cities Service Oil Co., 122 F.2d 149, 152 (2d Cir. 1941)).

Second, the Board decided that while an employer has a right to expect that employees’ working time be for work, an employee equally has a right to use non-working time for activities protected by Section 7, even on the Employer’s property. In affirming the Board’s analysis, the Supreme Court firmly established the rule that, while employers are rebuttably presumed to act lawfully when they limit employees’ rights to solicit other employees during working times, prohibitions on employee solicitation during non-working time, even in work areas, are presumed to be unlawful. 324 U.S. at 803 n.10. This presumption of unlawfulness may be overcome if the employer can demonstrate that the restrictions are necessary to maintain production or discipline. Ibid.

As to distribution, in Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), the Board found that the employer unlawfully disciplined an employee for violating its policy prohibiting the "unauthorized distribution of literature of any description on company premises." The Board held that the rule was unlawful on its face because it was not limited to working time or to the working areas of the plant. In conformity with the Supreme Court's direction to carefully balance employers' property interests with employees' organizational rights, the Board concluded that the employees' purpose in distributing literature may be satisfied so long as the literature is received by other employees and reread at their leisure, even if the handbillers are stationed outside of the working areas of the plant. Id. at 620. Thus, an employer may lawfully prohibit the distribution of written materials in working areas of the plant at any time, the presumption being that such actions are reasonably designed to minimize potential interference with production brought about by litter. However, an employer may not lawfully interfere with distribution activities in nonworking areas of the plant on the employees' own time, absent an affirmative showing that the employer's actions actually were necessary for the maintenance of production or discipline. Id. at 621-22.

In a previous case set forth in an earlier General Counsel Report released on September 1, 1998, at p.1, we had already decided that, aside from questions of disparate treatment, an employer's complete ban on all non-business E-mail, including messages otherwise protected under Section 7, was overbroad and facially unlawful. The employees in that earlier reported case communicated with each other and with management primarily by E-mail and performed a significant amount of their work (one employee estimated up to 75-80%) on the computer network. The employer invited employees to access the network from outside the building through the use of laptop computers and facilitated access to the network from employees' home computers. In a very real sense, the employer's computer network in that case constituted the employees' "work area" within the meaning of Republic Aviation and Stoddard-Quirk because it was on this network that the employees were productive. We thus concluded that the employer's flat ban on personal E-mail, the sole method of communication through this computerized "work area," which effectively banned protected solicitations as defined in Republic Aviation, was unlawfully overbroad.

In the instant case, the technicians utilized their E-mail system to a lesser extent than the did employees in the earlier reported case. We nevertheless decided that the Employer's E-mail network here comprised a sufficiently significant aspect of employees' work life to constitute a "work area." One employee estimated that he worked on the E-mail system for about an hour each day, and he and his co-workers used E-mail to communicate with each other and management on a daily basis. The Company announced corporate policy through E-mail and placed employee required on the E-mail system. It thus seemed clear that the E-mail system comprised a significant aspect of the technicians' productive work life, and thus constituted a "work area", if not the employees' sole work area. under Republic Aviation.

We then decided that the Employer's no solicitation/no distribution policy was overbroad because it did not distinguish between working time and non-working time, nor working areas and non-working areas. Rather, the Employer flatly prohibited employees from soliciting other employees or distributing literature "on Company property" at any time. In this way, the Employer's policy was strikingly similar to the blanket prohibitions on solicitation and distribution which the Board and the Court struck down as facially unlawful in Republic Aviation and Stoddard-Quirk. Further, the Employer had not even attempted to satisfy its burden of establishing that its restrictions on employee statutory rights were necessary to maintain production or discipline.

Our second reported case in this area again involved an Employer rule prohibiting all non-business use of E-mail, and also involved the Employer's ordering the Union's bargaining chair not to E-mail the Union’s "Bargaining Updates" to other members.

The Union represented a unit of approximately 900 employees employed at three separate locations of the Employer. For several years, the Employer had maintained an "Electronic Communications Policy" which states that: "E-mail and the Internet are to be used for business purposes only."

During negotiations for a new collective-bargaining agreement, a unit employee who was the Union's bargaining chair E-mailed to all Union members a "Bargaining Update" setting forth: (1) the Union's opposition to the Employer's contract proposals and its reasons for such opposition; (2) the Union's own proposals; and (3) the schedule and locations of upcoming meetings regarding the contract negotiations.

The following day, the Employer ordered the bargaining chair to stop using the E-mail system for sending the Union's "Bargaining Updates." The Employer, however, did not discipline the employee for this use of E-mail. The Employer based its directive to the bargaining chair upon the Employer's "Electronic Communications Policy." The Union filed the charge in this case alleging that the Employer's order to the bargaining chair, and the "Electronic Communications Policy" underlying it, violated Section 8(a)(1) of the Act.

Evidence revealed that most if not all bargaining unit employees used the Employer's computer network and E-mail system frequently during the workday, including using it as a common means of communication. Indeed, the Employer apparently did not dispute that a majority of unit employees spent most of their workday on the Employer’s computer network.

The Employer contended that its order to the bargaining chair was justified because of its potential for disrupting both the Employer's E-mail system, and also employees who receive messages during their work time. However, the Employer did not presented any evidence demonstrating any significant interference caused by the bargaining chair's E-mail, or likely to be caused by future E-mails.

We decided that (1) the Employer's rule prohibiting all non-business use of E-mail was facially overbroad; and (2) the Employer violated Section 8(a)(1) of the Act by ordering the bargaining chair not to E-mail the Union’s "Bargaining Updates" to other Union members.

In the case immediately above, which relied upon the case previously discussed in the General Counsel Report released on September 1, 1998, at p.1, we concluded that the employer's prohibition there of all non-business use of E-mail, including employees' messages otherwise protected by Section 7, was overbroad and facially unlawful. While the Board has not yet ruled upon the legality of a non-discriminatory prohibition of employees' use of E-mail for organizing or other Section 7 messages, our conclusion were based upon well-established principles set forth in the line of cases involving no-solicitation and no-distribution policies, exemplified by the Board's and the Supreme Court's decisions in Republic Aviation, discussed above.

In these cases, the balance between employee and employer rights is struck differently depending on whether the employee activity is solicitation of fellow employees, or distribution of printed literature. This distinction is elucidated in Stoddard-Quirk, which is generally cited for the simple proposition that an employer may limit the distribution of printed literature in work areas because the employer is presumed to have a legitimate concern regarding the potential for litter. However, the Board explicitly stated in that case that, "because [this consideration] presents only one side of the employer-employee equation, it does not wholly resolve the problem." Id. at 619. Instead, the Board also examined the employees' interests in distributing literature. The Board noted that, unlike oral solicitation, printed literature is permanent; it can be read and reread at the receiving employees' convenience. Thus, the Board concluded, the employees' purpose in distributing printed literature is satisfied as long as the literature is received by other employees, such as by distribution at plant entrances or in the parking lot; employees do not need to be able to distribute the literature throughout the employer's facility.

The clear implication of Stoddard-Quirk is that the distinction between solicitation and distribution is based on the employee interests and purpose inherent in the communication. Where the message can reasonably be expected to occasion a response or initiate reciprocal conversation, it is solicitation; where the message is intended to be limited to one-way communication and its entire purpose is achieved so long as it is received, it is distribution. If it is solicitation, Republic Aviation requires that it must be permitted in all areas in the absence of an overriding employer interest; if it is distribution, it may be prohibited in work areas unless the employees cannot effectively distribute the materials in non-work areas.

This helps explain the Board's characterization of the circulation of authorization cards and decertification petitions as solicitation, not distribution. See, e.g., Rose Co., 154 NLRB 228, 229 n.1 (1965); Southwire Co., 145 NLRB 1329 (1964). Cards and petitions are mass-produced and printed on paper. Yet the activity of collecting signatures requires more than mere receipt of documents, which characterizes distribution. Instead, the cards or petitions are only effective if the recipient considers and returns them. Such interchange exemplifies solicitation.

Based on this distinction, we had already decided that E-mail messages can be may be similar to oral solicitations because they may be expected to occasion a response. In explaining that conclusion, we noted that it has been widely recognized that many E-mail messages are not merely analogues of printed messages. Rather, they have been characterized as "a substitute for telephonic and printed communications, as well as a substitute for direct oral communications." In Re: Amendments to Rule of Judicial Administration, 651 So. 2d 1185 (Fla. Sup. Ct. 1995). There has even been Congressional recognition that E-mail "is interactive in nature and can involve virtually instantaneous 'conversations' more like a telephone call than mail." H.R. Rep. No. 647, 99th Cong., 2d Sess. at 22, discussing the Electronic Communications Privacy Act of 1986. One observer also has commented that:

Given our conclusion that E-mail often warrants the same treatment as oral solicitation, along with the determination in the previously reported cases that the employees at issue there used the employer's computers and computer network in such a way as to make them "work areas" within the meaning of Republic Aviation and Stoddard-Quirk, it followed that the Employer's rule here prohibiting such solicitation was unlawful, because there was no evidence that special circumstances made the rule necessary in order to maintain production or discipline. Electronic traffic such as E-mail presents a minimal burden upon an employer's computer network. This ordinarily would not constitute special circumstances making the rule necessary to maintain production or discipline, and it thus should not outweigh the employees' Section 7 interests.

In the instant case, as in the above reported cases, the Employer's "Electronic Communications Policy" contained a rule prohibiting all non-business use of E-mail, including solicitation messages protected by Section 7. And here as well, most if not all of the bargaining unit employees used the Employer's computer network and E-mail system frequently during the workday, including as a common means of communication. This evidence was sufficient to demonstrate that, for these employees, the Employer's computer network and E-mail system was a work area since that was where these employees are productive. The computers and E-mail were inextricably intertwined with the physical space these employees occupy and provide the virtual space in which they perform their jobs; as such, that virtual space is a "work area" within the meaning of Republic Aviation and Stoddard-Quirk. Finally, the Employer did not present any evidence that would demonstrate that a prohibition against E-mail otherwise protected by Section 7 was necessary for production, efficiency, or disciplinary reasons. Thus, as in the previously reported cases, we decided that the Employer's prohibition of all non-business use of E-mail would include a ban on employees’ solicitations otherwise protected by Section 7 was therefore overbroad and facially unlawful.

In addition, we decided that the Employer's order to the bargaining chair also violated Section 8(a)(1) of the Act, as the Union's "Bargaining Updates" warrant the same treatment as oral solicitation. We noted the Employer's defensive assertion that the bargaining chair had sent the "Bargaining Update" during working time. However, neither the Employer's order, nor its "Electronic Communications Policy" underlying it, were limited to working time. Instead, the prohibitions were based solely upon message content. Defensive issues relating to the use of E-mail during working time may be significant in other contexts. Since they were not raised in the instant case, however, we did not address them.

After Stoddard-Quirk, the distinction between solicitation and distribution is based upon whether the message can reasonably be expected to occasion a response or initiate reciprocal conversation; if so, it is solicitation. Where the message is intended to be limited to one-way communication and its entire purpose is achieved so long as it is received, it is distribution.

The "Bargaining Update" forcefully set forth the Union's opposition to the Employer's contract proposals and its reasons for such opposition; the Union's own proposals; and the schedule and locations of upcoming Union meetings. With regard to each of these points, the bargaining chair could reasonably have expected unit members' immediate responses. Such responses could have entailed, e.g., agreement or disagreement with the bargaining committee's positions, suggestions for alternative proposals or ways of pursuing particular points, questions concerning the course of the negotiations or the Union's strategy, or even the seeking of further information or offering suggestions as to the agenda for the next unit meeting. Here, as with the circulation of authorization cards or decertification petitions, the bargaining chair was asserting Union positions, implicitly inviting the E-mails' recipients to consider and respond. The "Bargaining Update" in effect attempted to rally support and counter objections; such attempts at interchange exemplify solicitation.

By using the medium of E-mail rather than distributing a printed version of the "Bargaining Update," the bargaining chair invoked the widely recognized tendency of E-mail, as discussed above, to be "interactive in nature" and to "promote a multiplicity of interchanges and, on the level of values, resemble speech more than distribution of literature." In particular, the reader's ability to send any response with a mere click of a button further strengthens the basis for characterizing messages such the "Bargaining Update" as reasonably likely to engender a reply from the recipient to the sender and, therefore, as solicitation. We thus decided that the "Bargaining Updates" could not have been banned from employee work areas because they should be considered as solicitations. In addition, we also decided that the Employer's order was unlawful even if the "Bargaining Updates" were to be considered distributions.

The unique nature of E-mail supports an argument that the balance of employer and employee interests discussed in Stoddard-Quirk should be struck differently here than in the case of distribution of printed literature in a facility with available non-work areas. In Stoddard-Quirk, the Board indicated that, in the absence of non-work areas where the distribution can take place, the usual presumption permitting an employer to bar distribution in work areas may not apply. 138 NLRB at 621. The ease of reply inherent in E-mail, as well as the incomparable abilities to forward an E-mail message to another recipient effortlessly and also to incorporate its text into another message quickly and conveniently, make a printed version of a message inferior and less effective than the version sent by E-mail. If employees were not permitted to send these "Bargaining Updates" via E-mail, but were instead required to rely exclusively on the distribution of printed copies thereof, an essential component of the employee communication would be lost. Therefore, unlike the distribution of printed literature discussed in Stoddard-Quirk, there are no non-work-areas where the same kind of distribution could take place. Under the Stoddard-Quirk framework, the E-mail "distribution" must be allowed even in a work area.

Accordingly, we decided to issue complaint alleging that the Employer violated Section 8(a)(1) by maintaining a facially overbroad rule prohibiting all non-business use of E-mail, and also by ordering the bargaining chair not to E-mail the Union's "Bargaining Updates" to other Union members, regardless of whether the "Bargaining Updates" were viewed as solicitation or distribution.

Our third case in this area concerned an Employer rule restricting the company E-mail system to business only; the discipline of a steward for using company E-mail for Union business; and whether to defer further proceedings regarding that discipline pending arbitration of a Union grievance.

The Union represented, among other employees, over 50 instrument technicians. Although the Employer had a long-standing rule restricting use of its company E-mail system for business only, the technicians regularly used the Employer's E-mail system as part of their work. The Employer often communicated with employees concerning terms and conditions of employment via E-mail, and required employees to regularly check for E-mail messages. The Employer also sent information such as changes in work rules to the steward via E-mail, and the steward himself spent from one-half to one hour per day on work related E-mail.

Our case arose when the steward sent an E-mail to the technicians concerning a rumor that the Employer was about to solicit volunteers among the technicians to train other employees. In this E-mail, the steward stated that instrument technicians were not certified trainers, and the other employees were not instrument apprentices. The steward thus advised the technicians that if the Employer approached them about performing the training, they should relate these facts to the Employer but they also should not disobey a direct supervisory order. Instead, the employees should bring to the attention of a steward any Employer order to perform this training.

The following day, the steward received a request from a joint union committee to solicit volunteers among the technicians to train other employees. The steward forwarded that request to the technicians, adding a comment that he hoped there would be no interest in volunteering. In fact, no technicians volunteered for the training.

The Employer thereafter advised the steward that it believed his E-mails constituted a serious offense against the E-mail system, because the steward had told the technicians not to do something which the Employer had told them to do. The steward pointed out that he had affirmatively told employees to not disobey a supervisory order. The Employer nevertheless reprimanded the steward for his initial E-mail, labeling it "illegal" because it had advised technicians to violate the parties' bargaining agreement. The Union filed a grievance over this discipline; when the instant charge was filed, that grievance was pending arbitration. The parties' bargaining agreement contained no provision concerning E-mail but did contain a provision barring discrimination based upon union activities.

We decided (1) to dismiss the allegation against the Employer's allegedly over broad rule restricting E-mail use for business only; and (2) to defer further proceedings against the steward's discipline pending arbitration of that discipline.

Regarding the Employer's rule, we had already concluded in the previously reported cases that the employees there used the employer's computers and computer network in such a way as to make them "work areas" within the meaning of Republic Aviation Corp. and Stoddard-Quirk, supra. It therefore followed that the Employer's rule in those cases, limiting E-mail to business only, i.e., prohibiting solicitation, was over broad and thus unlawful. In the instant case, we initially decided that the employees' regular work use of E-mail made the company's E-mail system a "work area" with the meaning of those cases. Although the Employer's E-mail use rule here therefore arguably also was unlawful as over broad, we decided to not proceed on that allegation.

First, the Employer here apparently was not enforcing its E-mail rule against union communications. Rather, the Employer admitted that it allowed the unions at its facility to use E-mail for communications. Second, the Employer stated that although it had disciplined other employees for E-mail use, such discipline typically involved sending sexual materials. The Union adduced no examples of Employer discipline of employees for having used E-mail for solicitation or other protected Section 7 activity. Third and consistent with the above, the Employer did not generally enforce its E-mail rule against the steward here. The Employer instead disciplined the steward because of the content of his initial E-mail, and not because he simply had violated the rule. Since the Employer's rule apparently was not enforced in this case, was not generally enforced against union or Section 7 communications, and there was no current Board law governing the matter, we decided that it was unnecessary to proceed against this rule on the novel theory set forth in the above cases.

Regarding the Employer's discipline of the steward, we decided that to defer further proceedings to the parties' grievance-arbitration procedure. See Collyer Insulated Wire, 192 NLRB 837 (1971). The Employer alleged that it disciplined the steward for sending an "illegal" E-mail advising technicians to violate the bargaining agreement. Since the discipline was based upon the content of that email as a contract violation, and not simply based upon a violation of the E-mail rule, an arbitrator could either uphold or overturn the discipline without passing upon the general validity of the Employer's E-mail rule. For the Union's part, it could argue that the steward's E-mail did not urge employees to violate the parties' bargaining agreement. Thus the Union could argue for the overturning of the discipline without regard to the validity in general of the Employer's E-mail rule. Since the dispute over the steward's discipline was not inextricably intertwined with the arguably unlawful overbreadth of the Employer's E-mail rule, we could separately defer the allegation against that discipline.

Our fourth and final case in this area concerned an Employer's discipline of an employee in violation of a portion of an unlawfully over broad rule against the non-business use of company computers, E-mail and internet systems.

The Employer provided computer solutions to its domestic and international organization customers. The Employer's employees spent the majority of their time on their computers and also constantly used the Employer's email system and its access to the internet.

The Employer had the following work rule: "Computer resources, including electronic mail and Internet access, are Company assets are [sic] to be used for Company business only." The Employer's Employee Handbook also stated, in pertinent part, "E-mail is a communication tool that should be used solely for the purpose of business communication."

Our case arose when the Employer disciplined an employee pursuant to an audit of his computer. The audit had been prompted when the employee requested permission to post four papers inside his cubicle wall. Three of these papers appeared to be published articles concerned Union matters. The fourth paper was a document created by the employee on the Employer's computer and printer. This document was a rebuttal to the Employer's anti-union videos. It requested employees to keep an open mind and also informed them about a Union meeting.

The Employer gave the employee a written warning for misuse of Company property, stating in pertinent part:

The Employer defended the above warning by stating that it observed the employee posting a personal document which it reasonably suspected had been created on the Company's computer workstation. The Employer therefore audited the employee's computer, finding four non-business related documents that had been created or downloaded from the Internet, and also a Word document that had been created on the Employer's workstation during the employee's work time.

Although we decided to issue complaint alleging that the above cited Employer rule was unlawfully overbroad, we also decided to not argue that the Employer's discipline of the employee for violation of that rule was unlawful, because the Employer’s asserted business justification for the discipline was independent of the rule.

First, concerning the Employer's rule, we noted that the employees in the instant case were situated similarly to the employees in the above reported cases, i.e., they spent a significant amount of their work time on their computers, using the Employer's email and internet communication systems. Thus in the instant case, as there, these employees used the employer's computers and computer network in such a way as to make them "work areas" within the meaning of Republic Aviation and Stoddard-Quirk. The Employer's rule here, as there, also prohibited all non-business use of its computer equipment, email and internet communications, which necessarily includes solicitation messages protected by Section 7. Thus, under the rationale of the previously reported cases, this rule was an over broad and unlawful restriction on protected solicitation.

Regarding the discipline, we noted that the Employer disciplined the employee for having violated the above unlawful rule. The fact that the employee was disciplined pursuant to an unlawful rule would make his discipline also unlawful unless the Employer could independently justify that discipline. Daylin, Inc., 198 NLRB 281 (1972). In Daylin, the Board stated that a rule that unlawfully restricts employee solicitation:

Thus, where an employer can adduce a separate reason for discipline, not implicating Section 7 and apart from the unlawful rule, such discipline is lawful.

The Employer imposed the discipline here because the employee had misused "computer resources", i.e., he "created and printed [a file] on company property with company equipment . . ." during a time he should have been working. The asserted grounds for this discipline thus were not for engaging in protected communications in the employee's computer "work area." Rather, the Employer imposed discipline for "creating and printing" the document on company owned equipment. We decided that this reason did not implicate a Section 7 right, and could form a lawful basis for the discipline, separate and apart from the unlawfully overbroad aspect of the rule.

The Board has long held that an employer may control employee use of certain company owned equipment, even where that equipment is used for purposes of communication. For example, the Board has long stated that employees do not have an absolute right of access to employer bulletin boards. See, e.g., J. C. Penney, Inc., 322 NLRB 238 (1996); Honeywell, Inc., 262 NLRB 1402 (1982), and cases cited therein. This jurisprudence arguably also extends to employer owned copier equipment and telephones. See Champion International Corp., 303 NLRB 102 (1991) (in finding unlawful disparate treatment of an employee for copying a union newsletter on the employer's copier machine, the ALJ stated in dictum that the employer did have "a basic right to regulate and restrict employee use of company property . . ."); Churchill's Supermarkets, Inc., 285 NLRB 138, 139 (1987) (in finding unlawful disparate treatment of an employee for using the company telephone, the ALJ, adopted by the Board, stated in dictum that the employer "had every right to restrict the use of company telephones to business-related conversations and to forbid employees from using company phones for personal reasons.")

While in certain circumstances computer systems can be a work area, they are also the employer's property which, like employer bulletin boards, can in other circumstances be regulated. We therefore concluded that an employer may lawfully limit the use of computer equipment when that equipment is not being used as a work area. This conclusion is fully consistent with the finding of violations in the above reported cases. Those cases did not concern the non-communicative use of company equipment, and instead only concerned an overly broad ban on protected E-mail communications.

In the instant case, the Employer did not impose the discipline for communicating via the computer equipment. Rather, the Employer gave the employee a narrowly written warning for using company computer equipment to create the document. Since the Employer thus had adduced this lawful basis for its discipline, a basis separate and apart from the employee's violation of the over broad rule, the discipline did not implicate Section 7 rights and according was not unlawful.

An interesting case arising during this period involved how to proceed against a company which made and sold a videotape containing Section 8(a)(1) threats, where that company did not itself show the video to employees but rather another company, who bought the video, showed the video to its employees.

During a union organizing campaign, the Purchaser Employer showed its employees a videotape. Certain statements made in that video, depicting a union organizing campaign in a generic workplace, constituted Section 8(a)(1) violations including unlawful threats of plant closure and loss of employment. The Purchaser bought the video from the Maker Employer, which advertised and offered for sale a range of "labor relations" videos. The Maker's advertising stated that it had "helped thousands of companies give their employees a company to vote for rather than a union to vote against ... [i]f your company doesn't have a union, and doesn't want one, don't wait until there’s a union organizer at the door." Videos made by the Maker had been implicated in several other Board proceedings, including apparently "custom" videos found to constitute objectionable conduct. Other Maker videos were alleged in another pending proceeding to constitute Section 8(a)(1) threats by the employer who had purchased and showed them.

We decided to issue a Section 8(a)(1) complaint against the Maker itself under two theories. We first decided to allege that the Maker was an agent of the Purchaser and, as such, was itself liable as a named respondent for the unlawful video threats. Section 2(2) of the Act includes within the definition of employer "any person acting as an agent of an employer, directly or indirectly . . . ." Thus, labor consultants may be held liable as separate respondent employers for their unfair labor practices as agents of the employers employing them. See, e.g., Wire Products Mfg. Corp., 326 NLRB No. 62 (1998); Blankenship and Associates, Inc., 306 NLRB 994 (1992), enfd. 999 F.2d 248 (7^th Cir. 1993); Chalk Metal Co., Inc., 197 NLRB 1133, 1152-54 (1972); Alliance Rubber Co., 286 NLRB 645, 645-46, 668-69 (1987).

Had the Maker in our case sent an individual to personally threaten the Purchaser's employees, instead of making the threats via videotape, there is no question that the Maker would be the agent of the Purchaser. Instead of sending an individual to convey unlawful threats, the Maker here had sent a videotaped message. In our view, it would be an artificial distinction to hold that the Maker was not the Purchaser's agent solely because the threats were made through a video instead of in person.

The Board has found that parties unaffiliated with an employer, who made threats via videotape or other media instead of in person to the employer's employees, were agents of the employer. Wallace International de Puerto Rico, Inc., 328 NLRB No. 3, slip op. 1 at n. 2 (1999)(local mayor deemed agent where employer showed employees videotape of mayor threatening plant closure); Fieldcrest Cannon, Inc., 318 NLRB 470, 472 (1995)(public relations firm hired to produce and circulate posters and newspaper advertisements predicting plant closure and loss of jobs deemed agent of employer), enf. granted in pertinent part, 97 F.3d 65 (4^th Cir. 1996).

We recognized that a sales transaction for an item is arguably insufficient by itself to create an agency relationship. See generally, Restatement 2d, Agency §§ 14J, 14K (1958). However, the "product" in our case was not so much a manufactured good as it was a communication. In the above cited labor consultant cases, the employers essentially were purchasing a service from the labor consultants: the effective communication of a desired message. Similarly, what was purchased here was an effective means of conveying a desired message to employees. Thus the video here was the equivalent of a labor consultant.

The Board has also held that individuals, unaffiliated with an employer, who on their own initiative restrain or interfere with employees' exercise of Section 7 rights, were agents of the employer as long as the employer had knowledge of the activity, reaped the benefits of the activity, and failed to disavow the activity. See, e.g., In re Southern Pride Catfish, 331 NLRB No. 81, slip op. 2-3 (2000). The Board not only found such unaffiliated persons to have been agents, but also found them individually liable as respondents for such acts. See, e.g., Henry I. Siegel Co., 172 NLRB 825 (1968), enfd. 417 F.2d 1206 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970); Dean Industries, Inc., 162 NLRB 1078, 1101 (1967). Thus, although the Maker produced the video independent of any relationship with the Purchaser, and the Purchaser had no control over the contents of the video prior to production, the Maker may still be deemed the Purchaser's agent with respect to the message contained in the video shown by the Purchaser to its employees.

In addition to the above agency theory, we also decided that the Maker was liable as an "employer" within the meaning of the Act. It is clear that an employer can violate Section 8(a)(1) by directly threatening the employees of another employer. See, e.g., Fabric Services, Inc., 190 NLRB 540, 542 (1971); A.M. Steigerwald Co., 236 NLRB 1512, 1515 (1978), affd. 605 F.2d 560 (7^th Cir. 1979).

We noted that there was no evidence that the Maker had any power to affect the terms and conditions of Purchaser employees' employment. However, the underlying issue in Fabric Services and Steigerwald was the level of coercion, interference or restraint that the threatening employers' conduct engendered. Several factors in our case compensated for the Maker's lack of power or control over the threatened employees, making its communication sufficiently coercive to constitute an 8(a)(1) violation. These factors included the content of the communication itself, threatening plant closure and loss of employment, as well as the fact that the threats were compelling transmitted to the employees through their direct employer.

Finally, it was clearly foreseeable that a purchaser of one of the Maker's videos would put the video to its advertised use, i.e., that the purchaser would show the video with the unlawful threats to its employees. In this respect, we drew an analogy to the tort defamation theory of liability, under which a publisher of a libel is liable for the republication of the libel by a third party if that republication was reasonably foreseeable. See Restatement 2d, Torts § 576(c)(1977)(liability if "the repetition was reasonably to be expected"), cited in Tavoulareas v. Piro, 759 F.2d 90, 136 n. 56 (D.C. Cir. 1985), cert. denied 484 U.S. 870. Thus, in showing the video to its employees and giving its imprimatur to its content, the Purchaser was acting as the foreseeable facilitator or mechanism through which the Maker's threats were conveyed to employees.

In one case considered during this period, we concluded that employees were engaged in protected activity when they concertedly withheld their services in protest of the implementation of reduced work schedules, notwithstanding the Employer’s characterization of the employees’ actions as "insubordination."

An Employer that had been experiencing cash-flow difficulties decided to lay off five professional employees and two clerical employees for one month. At a meeting with employees to announce the decision, possible alternatives to the Employer’s plan were discussed. The Employer adopted a suggestion that would allow employees to work part time rather than be laid off. When the employees were informed that as part-time employees they would be unable to collect unemployment insurance, they told the Employer that they would rather take the one-month layoff than work part time. They were informed that a layoff was no longer an option, and that they would have to accept the part-time schedules or look for other employment.

Thereafter the employees met informally a few times in order to discuss whether there was anything they could do to prevent the imposition of the part-time schedules. However, the Employer announced that the changes would be implemented and that individual employees would have their hours cut from 40 hours per week to 18 to 20 hours a week. The employees continued to discuss the cuts and sent a representative to speak with the Employer about them. In particular, they noted their concern that they would lose benefits listed in the employee handbook if they only worked part time. After being notified of the effective date of the changes, the employees met and agreed to send a memorandum to the Employer protesting the cuts and demanding a meeting.

A meeting was subsequently held during which the Employer individually asked each of the employees present if he or she would accept the new schedule. Each of the professional employees responded that they would not. The Employer then told the employees that they were fired. Following the meeting, the Employer called the two professional employees who missed the meeting and informed them that their colleagues had refused to accept the new schedules and had walked out. Each was asked if they were going to accept the new schedule. One of the two informed the Employer that she would respond in an hour and the other stated that she needed time to consult with her associates. Although neither of them verbally informed the Employer of their decision, they did not show up for work when the new schedules took effect.

We decided that the Employer violated Section 8(a)(1) of the Act by firing employees because they refused to work the reduced schedules. We further concluded that although the Employer never formally discharged the two employees who missed the meeting, their subsequent failure to report to work was in solidarity with their fellow employees’ protest over the changes in working conditions, and was likewise protected.

The Board and courts have long been protective of the rights of employees who band together to protest employer policies or conduct. In the lead case of NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court enforced a Board order reinstating with back pay several unorganized employees who had left work concertedly to protest the low temperature in the plant. The Court found the discharges to be unlawful and rejected the argument that the conduct was not protected because the employees had not given the employer an opportunity to avoid the stoppage by granting concessions. The Board has generally considered minimal interaction between even two employees as concerted. See Meyers Industries, 281 NLRB 882, 887 (1986), affd. 835 F.2d 1481 (D.C. Dir. 1987).

There is no dispute that the events herein involved concerted protected activity prior to the final meeting that led to the employee discharges. The employees had met to discuss their reaction to the Employer's plans to reduce their hours several times prior to that last meeting. These meetings culminated in a joint memorandum signed by the affected employees protesting the reduced hours and demanding a meeting to discuss the matter. At that meeting held in response to the demand, the Employer individually confronted each employee and demanded a commitment that he or she accept the reduced schedules. Each professional employee refused to work the new schedule and the Employer then announced that they were fired.

We decided that the employees' refusals to work were the logical outgrowth of their concerted protest over the reduction of their hours, and that their concerted withdrawal of their services constituted protected concerted conduct. See Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992)(Yurosek I), and 310 NLRB 831 (1993)(Yurosek II), enf’d. 53 F.3d 261 (9^th Cir. 1995). In Yurosek I, the Board found that the General Counsel had made a prima facie showing of protected concerted activity where several employees had refused to work overtime on one occasion, even though there had been no discussion among themselves about the overtime. The employees had protested as a group, and their identical actions in refusing to work overtime were a logical outgrowth of that concerted protest. Yurosek II, supra at 831. In Yurosek II, the Board adopted the ALJ’s findings that the employees were discharged for their concerted protected activity of refusing to work the overtime demanded of them by the employer. The Board found that that the fact that employees were interviewed and discharged separately did not negate the fact that the employees were otherwise treated as a group throughout the incident, and that the employer therein inferentially believed that the employees were engaged in concerted activity.

In Smithfield Packing Co., 258 NLRLB 261, 263 (1981), a case involving comparable circumstances to those present in our case, six employees left work together after having worked nine hours of a special Sunday workday even though the employer had not ended the shift. The next day, the employer interviewed the employees separately, and later decided to fire them. The Board found that the fact that the employees gave individual excuses at individual meetings did not detract from the concerted nature of their response. The Board has also found in similar situations that employees had engaged in protected activity when they concertedly left their jobs, even though their employers had specifically told them that they would be considered to have quit their jobs if they left. See, e.g., Modern Iron Works, 281 NLRB 1119 (1986) and cases cited therein.

We distinguished John S. Swift Co., 124 NLRB 394 (1959). In that case, employees refused to work any overtime, even though they continued to work their regular schedule. In our case, the employees did not attempt to engage in any intermittent activity, but rather refused to work the entire schedule assigned to them. Such conduct has been considered by the Board to be protected.

We thus concluded that the Employer acted unlawfully by considering the affected employees as "voluntary quits" rather than employees who had decided to withhold their services in protest over the Employer’s demand that they work reduced hours.

In another case, we considered whether a company violated Section 8(a)(1) of the Act by filing a lawsuit against unions challenging a negotiated project labor agreement (PLA).

Because of the existence of a PLA in the bid documents on a school project, a non-union subcontractor was unable to bid on the project. (The PLA required successful subcontractor bidders to enter into contacts with various trade unions as a condition to performing work on the project.) The subcontractor instituted a federal court action seeking injunctive relief against the project manager and the various trade unions He claimed that the PLA violated the Sherman Antitrust Act, Section 8(e) of the National Labor Relations Act and the Donnelly Act by depriving him of the opportunity to bid on the project unless he agreed to hire only union employees. After the court declined to issue an injunction or enter a declaratory judgement in his favor the subcontractor indicated he would not pursue the matter further. The union Trades Council then filed the instant 8(a)(1) charge alleging a violation under Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983).

In Bill Johnson’s, recognizing that the First Amendment protects the filing and prosecution of a reasonably based lawsuit, the Supreme Court stated, that as a general rule, a lawsuit could be condemned as an unfair labor practice only if two conditions were met: (1) the lawsuit lacked a reasonable basis in fact or law; and (2) the suit had a retaliatory motive, i.e., it was motivated by a desire to retaliate against the exercise of a Section 7 right. Further, the Court explained, the fact that the lawsuit was dismissed, thus rendering it unmeritorious, "is a factor that the Board may take into account into determining whether the suit was filed in retaliation for the exercise of Section 7 rights." 471 U.S. at 747.

Initially, we decided that the fact that the lawsuit was aimed at the union rather than employee conduct does not preclude finding the conduct at issue constituted Section 7 activity. See BE & K Construction Company, 329 NLRB No. 68 (1999), slip op. p. 9. As to the issue of Section 7 activity, the issue of the PLA, as protected activity, is intertwined with the issue of whether a PLA is lawful under state laws. Clearly, collective bargaining is conduct protected by the Act, and PLAs, which have resulted therefrom, have been found lawful. Bldg. & Constr. Trades Council of the Metro Dist. v Assoc. Builders and Contractors of Massachusetts, Rhode Island, Inc., 507 U.S. 218, 229 [142 LRRM 2649]( 1993). On the other hand, there are PLAs which include clauses that may conflict with state law or have been found to violate Section 8(e) because they have a secondary objective. See, e.g. Asbestos Workers Local 3, 8-E-38-58 (Advice Memo dated July 26, 1999). In the instant matter in which the Company decided not to pursue its court action further, the district court specifically held that the challenged PLA was lawful and was apparently the result of negotiations between the project manager and the various craft unions. As the Supreme Court indicated in Bill Johnson’s, once the Court dismissed the Company’s lawsuit and the Company declined to pursue the matter, the suit must be deemed meritless. Moreover, the Board in Roundout Electric, 329 NLRB No. 87 (1999) noted that the Supreme Court in Bill Johnson’s alluded not only to adverse judgements "but also to suit withdrawals and occurrences that ‘otherwise’ manifest the lack of merit." Thus, the company in the instant matter acted at its peril by pursuing the lawsuit to determine the legality of the PLA, and such suit was meritless once the court dismissed the matter and the company did not pursue further recourse.

In addition, since the lawsuit was aimed directly at protected activity, namely the PLA, it was retaliatory within the meaning of Bill Johnson’s. See BE & K Construction Company, supra 329 NLRB No. 68, where the Board held that "Since the suit was aimed directly at protected activity, and necessarily tended to discourage similar protected activity, it was, by definition, retaliatory within the meaning of Bill Johnson’s." Id, slip op. p. 10.

In that case, the respondent filed a lawsuit challenging the legality of a union campaign against the respondent which included (1) picketing at its premises; (2) advocating the adoption and enforcement of a toxic waste ordinance; (3) filing a lawsuit in state court alleging violations of California’s health and safety code; and (4) filing grievances. The Ninth Circuit concluded that the unions’ litigation activity was protected because more than half of the actions filed by the unions had proved successful. The unions then filed an unfair labor practice charge alleging that the Respondent’s filing and maintaining the lawsuit had violated the Act. The Board concluded that the Respondent’s lawsuit against the unions was unmeritorious and that it was filed in retaliation against the Unions’ protected activities. See also Petrochem Insulation, Inc., 330 NLRB No. 10 (1999). Based on this precedent, we decided the instant lawsuit lacked a reasonable basis and was retaliatory.

EMPLOYER ASSISTANCE

In two cases arising during this period, we considered whether employer-union neutrality agreements amounted to unlawful employer assistance under Section 8(a)(2) of the Act. Our first reported case involved an employer agreement providing the union with access to the employer's property and its employees for organizing purposes.

The Employer was an Indian tribe that operated a gambling casino on its reservation in California. The tribe negotiated and entered into a compact with the State of California, pursuant to the federal Indian Gaming Regulatory Act. That Act obligates states to extend to Native American tribes the same opportunity to run gaming casinos on tribal land as the state extends to non-Native American casino operators on non-tribal land.

Section 13.7 of the parties' compact, "Concerted Activity and Representation of Employees by Employee Organizations," recognized the right of the casino's service employees to organize, to bargain collectively and to engage in other concerted activities. Section 13.7.3 provided that if any labor organization seeking to organize these casino employees offered in writing that it would not engage in strikes, picketing or other economic activity, the casino must enter into an agreement with the union granting the union access to its facility as well as recognition based on a card majority. Alternatively, the compact permitted the casino to negotiate a different procedure for determining union recognition so long as it offered the same arrangement to any other union seeking to organize its employees which similarly agreed not to engage in strikes, picketing, or other economic activity.

Pursuant to these provisions of the compact, the Employer and Union A entered into a "Voluntary Election Agreement." Union A promised not to picket the casino. In return, the Employer agreed that it would grant Union A access to casino employees on non-work time in non-work areas; would provide Union A with employees' names, addresses, telephone numbers and work classifications; and would hold a secret-ballot, non-Board representation election supervised by a neutral third party upon receipt of authorization cards signed by 30% of the casino's service employees.

Pursuant to that agreement, the Employer allowed Union A to park a trailer, emblazoned with a banner, in the casino's employee parking lot, and also to meet with employees in this trailer as well as at a nearby hotel. The casino further allowed Union A access to speak to casino employees in employee break rooms. The Employer and Union A notified employees of the terms of this agreement "which will allow the service employees to decide whether to be represented by a union through a democratic process."

Union B, the Charging Party in our case, represented units of service employees at many casinos throughout Nevada and California. Union B was aware of both the state-tribal compact and the voluntary election agreement with Union A, but never offered to enter into a similar agreement with the Employer or otherwise offered to agree not to picket in return for access to employees. Instead, Union B contacted employees at their homes.

Despite the Employer's assurance of neutrality, Union A complained that the Employer impeded access to employees and discouraged them from supporting the Union. In response, the Employer distributed a statement to its employees in which it restated their right "to join, or to refrain from joining" Union 1 and stated that it was neutral as to Union 1's organizing campaign.

When Union A presented cards to the arbitrator establishing at least 30% employee support, the arbitrator scheduled an election. Learning of the upcoming election, Union B sent organizers to the casino to pass out organizational leaflets and talk to employees. On each occasion, security guards told the organizers that they did not have the right to distribute leaflets and escorted them off the property.

Shortly before the scheduled election, a tribal official distributed a letter to all employees regarding the upcoming election, stating the Employer's position of neutrality.

The election took place as scheduled, inside Union A's trailer located in the casino's employee parking lot. The Employer had previously distributed notices to unit employees explaining that the balloting would be attended by one Employer representative and one Union A representative, as well as a neutral party. Union A won the election and was recognized as the employees' representative.

We decided that the Employer did not unlawfully dominate or assist Union A by entering into or implementing the voluntary election agreement. We noted that an employer may not render "unlawful assistance" to the formation of a union by its employees; however, a certain amount of employer "cooperation" with the efforts of a union to organize is lawful. The Board and courts evaluate the totality of the employer's conduct to determine whether its support would tend to inhibit employees in their free choice regarding a bargaining representative and/or interfere with the representative's maintenance of an arms-length relationship with it. In its seminal decision in Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d 165, 167-68 (7^th Cir. 1955), the Seventh Circuit stressed that "actual domination," and not just the potential means for interference, is a requisite element for a Section 8(a)(2) violation.

The use of company time and property by an otherwise independent union does not in itself constitute unlawful employer support and assistance. For example, in Jolog Sportswear, 128 NLRB 886 (1960), aff'd 290 F.2d 799 (4^th Cir. 1961), a union representative met with employees in the plant cafeteria in the presence of the company's labor representative and the plant manager. After the company representative introduced the union representative to the employees, the union representative led an hour-long discussion about the advantages of supporting the union. At the conclusion of the meeting, the plant manager informed employees that they would be paid for the time spent at the meeting. Although a group of employees waged a vigorous anti-union campaign, the employer subsequently assured employees by letter that it would not discharge or otherwise interfere with any person who engaged in union or nonunion activities. After state officials performed a card check that established a union majority, the employer recognized the union and negotiated a collective-bargaining agreement. On these facts, the Board held that the employer did not render unlawful assistance to the union despite its grant of access and the employer's own presence at the organizing meeting in circumstances where the company maintained its neutrality throughout the subsequent organizing drive.

In contrast, the Board more harshly views employer discrimination against one union in the face of a competing organizational campaign. Thus, in Steak and Brew, 213 NLRB 450 (1974), in the midst of a highly contested organizational campaign between Teamsters' and Bartenders' unions, the employer entered into an agreement with the Teamsters. In return for a no-picketing pledge, the employer granted that union visitation rights with employees, a private non-Board election, and beneficial contract terms conditioned upon an election victory. The employer did not notify the competing Bartenders union of this agreement nor give the Bartenders an opportunity to enter into a similar arrangement. Although the Employer placed the Bartenders union on the ballot in the ensuing non-Board election, it did not offer the union a right to participate. Instead, the employer appointed an observer, paid by the company, to attend on that union's behalf and told employees that the election was being conducted jointly by management and the Teamsters. The Board invalidated the Teamsters' election victory.

We concluded that the instant case was closer to Jolog Sportswear than Steak and Brew and similar cases. Although the Employer granted Union A access to speak with its employees in non-work areas during non-work times, there was no evidence that the Employer put direct pressure on employees. The Employer never required employees to attend union meetings, nor paid them for their attendance, nor threatened employees for their union support or lack of support. Cf. Monfort of Colorado, 256 NLRB 612 (1981), enfd. 683 F.2d 305 (9^th Cir. 1982). Rather, the Employer here repeatedly advised employees that it would protect their right to freely choose whether to support or not to support the union. Moreover, the Employer did not immediately recognize Union A upon receiving evidence that the union had a card majority, but participated in a private election administered by a neutral third party who certified the results. Cf. Vernitron Electrical Components, 221 NLRB 464 (1985), enf'd 548 F.2d 24 (1^st Cir. 1977).

Most importantly, in our view, there was no evidence that the Employer discriminated against Union B in any way. The Employer specifically agreed to waive its right to limit union access to its facility and to provide employees' names and addresses because Union A pledged not to disrupt the facility by engaging in picketing or other economic activity. Each of these provisions constituted a lawful bargaining subject which parties may freely trade as best they see fit. Union B learned of this bargained-for arrangement with Union A almost as soon as it was signed. Union B nevertheless did not ask the Employer for a similar agreement. Nor did the Employer ever refuse to strike the same bargain with Union B. Thus, the Employer did not discriminate against Union B by rejecting its one-sided demand for a waiver of the Employer's access rights without a contemporaneous commitment, as Union B had given, to refrain from disruptive picketing.

In our second case, we considered the legality of an Employer-Union neutrality agreement governing the Union's effort to organize unrepresented employees at a newly acquired facility.

The Employer purchased a steel plant from another employer, agreeing not to change benefits or working conditions during its first year of operation. Although the predecessor employer had not had a bargaining history with any union, the Employer had long been party to a national collective-bargaining agreement with the Union. Both the Employer's expiring agreement and its successor agreement contained neutrality provisions governing Union efforts to represent previously unrepresented employees at new and existing Employer facilities.

Both neutrality provisions stated that the Employer agreed to recognize the Union if, at any point during a 90-day campaign, the Union presented authorization cards signed by a majority of the designated unit, subject to a card check by a neutral third party. The Employer agreed to maintain a neutral position during the Union's organizing campaign; the Union agreed that it would not undertake more than one organizing campaign at a facility in a 12 month period. The neutrality agreements required the Employer to furnish the Union with employee names and addresses and to grant the Union reasonable access to the plant for the distribution of literature and employee meetings.

The Union decided to organize the approximately 360 hourly employees at the Employer's newly purchased facility. At that time, a unit employee had begun speaking with employees in opposition to the Union, believing that the Union was conveying inaccurate information. He began soliciting employees to sign forms revoking their cards or declaring that they had never signed cards.

Although the Union eventually believed it had a card majority, it cancelled a plan to present the cards to the parties' jointly selected neutral. The Union asserted that the Employer had violated the parties' neutrality agreement. The parties agreed to an extension of the campaign for an additional 90-day period. The Employer agreed to permit the Union to hold informational meetings with the employees inside the plant and to distribute campaign information at the employee entrance.

The opposing employee organized an informal group of 10 to 20 members. The employee wrote a letter to the Employer requesting a meeting room where employees could meet with the group's supporters during their non-work time. He also requested to have the group's representatives attend all meetings connected with the Union campaign.

Over the next three days, the Employer held employee meetings where Employer representatives explained why the Union's campaign had been extended. The representatives iterated the Employer's neutral position and assured the employees that they were free to decide whether they wanted Union representation. The Employer representatives then introduced the Union's representatives and left the room. These meetings then became open debates between members of the anti-Union group and the Union representatives.

Later in the month, the Union began soliciting employees and distributing literature on a daily basis at an agreed-upon location near the employee parking lot. The Employer provided the Union with a small shed and a portable toilet for these activities.

At about the same time, the Employer's vice president for labor relations met with the employee leader of the anti-Union group. The employee asked that the group be allowed to use the in-plant meeting room, where the Union meetings had occurred, to meet with employees during their non-work time. The Employer denied the request stating that the group was not a union and that, as employees, its members already had superior access to the employees. The employee asked whether the Employer's answer would be different if the group were a union. The Employer's representative replied that the Employer had a neutrality agreement with the Union, and no other union had sought a similar agreement. However, the Employer agreed to allow the group to attend the card check as well as other meetings pertaining to the neutrality agreement.

The employee later unsuccessfully requested that the Employer give the group a shed like the Union's at the parking lot entrance or to be allowed to share the Union's shed. The group did not attempt to distribute literature at the employee entrance.

In the fall, the Employer held meetings with salaried employees explaining certain benefits changes to be implemented in January. These changes involved shifting from the predecessor employer's benefits package, which had covered both salaried and hourly employees, to the benefits package available to the Employer's unrepresented employees. The Union protested the timing of the announcement, but apparently accepted the Employer's explanation that the benefits changes would affect only non-unit salaried employees.

Shortly thereafter, the Union presented signed authorization cards to the jointly selected arbitrator. The anti-Union's group's representatives attended that meeting and presented card revocations and form letters from employees stating they had not signed cards. The arbitrator ultimately concluded that a majority of the unit employees had designated the Union. The Employer then recognized the Union; the parties entered into contract negotiations.

We decided to dismiss the charges. Initially, we noted that unions and employers may lawfully agree to limit their conduct during organizing campaigns. Houston Division of the Kroger Company (Kroger II), 219 NLRB 388 (1975), on remand from Retail Clerks International Association Local No. 455 v. NLRB, 510 F.2d 802 (D.C. Cir. 1975) (upholding employer agreement to grant recognition to a union at a future facility; condition that union must in fact obtain majority status at the new facility read into contractual after-acquired clause); United Automobile Workers v. Dana Corp., 679 F.2d 634 (6th Cir. 1982) (Sec. 301 court properly found valid an employer waiver of its 8(c)/first amendment rights from neutrality agreement requiring employer to refrain from anti-union remarks during union organizing drive); Hotel & Restaurant Employees Union Local 217 v. J.P. Morgan, 996 F.2d 561, 566 (2d Cir. 1993). Therefore, the appropriate inquiry in our case was whether in implementing this neutrality agreement, the Employer had crossed the line between lawful cooperation and unlawful assistance under Section 8(a)(2). Longchamps, 205 NLRB 1025 (1973).

The Board and the courts evaluate the totality of the employer's conduct to determine whether its support would tend to inhibit employees in their free choice regarding a bargaining representative and/or interfere with the representative's maintenance of an arms-length relationship with the employer. For example, the Board has held that the use of company time and property by an otherwise independent union does not in itself constitute unlawful employer support and assistance. Jolog Sportswear, 128 NLRB 886 (1960). Rather, the Board considers whether the quantum of "indirect pressure," such as directing and paying employees to attend union meetings during work time, and "direct pressure," such as permitting the union to solicit authorization cards in front of management representatives, would "reasonably tend[ ] to coerce employees in the exercise of their free choice in selecting a bargaining representative." Vernitron Electrical Components, 221 NLRB 464, 465 (1975), Where both kinds of pressures exist, especially when coupled with a rapid and unverified grant of recognition by the employer, the Board finds unlawful assistance in violation of Section 8(a)(2). On the other hand, the Board has dismissed complaints that presented something less than this combination of coercive factors. See, e.g., Longchamps, supra; 99¢ Stores, 320 NLRB 878 (1996).

Applying these principles, we decided that there was nothing per se unlawful in the manner in which the parties implemented their neutrality agreement. The Employer did not unlawfully assist the Union by providing the roster of employee names and addresses or by making favorable comments about the Union to the unrepresented employees. Nor was the display of blank authorization cards at one employee meeting a Section 8(a)(2) violation, because there was no evidence that any card signing occurred at the meeting. See 99¢ Stores at 878, n.2, distinguishing Vernitron Electrical Components; Jolog Sportswear, supra (no 8(a)(2) violation, although employer permitted union to address employees on company time, where management personnel not present when cards signed); Coamo Knitting Mills, Inc., 150 NLRB 579 (1964) (no 8(a)(2) where employer representatives present at card-signing on company property but could not see which employees executed cards).

The special access granted to the Union raised a more difficult issue in light of the Employer's denial of similar access to the anti-Union group. The Board harshly views employer discrimination against one union in the face of a competing organizational campaign. See Steak and Brew, 213 NLRB 450 (1974); Regal Recycling, Inc., 329 NLRB No. 38 (1999); Ella Industries, 295 NLRB 976, 979 (1989); and Monfort of Colorado, 256 NLRB 612 (1981), enfd. 683 F.2d 305 (9th Cir. 1982).

We noted that the above cases dealt with two competing unions, whereas the anti-Union group in our case did not appear to be a 2(5) labor organization. We decided, however, that it was unnecessary either to rely upon this distinction, nor to decide whether denying equal access to a non-labor organization would constitute unlawful assistance, because the anti-Union group here had not been treated disparately. The group did not request the same access granted to the Union. The group instead sought to use the Employer's meeting room as a kind of campaign office where employees could come on their own time to speak with the group's representatives. Moreover, the group had the opportunity to be heard at the scheduled Union meetings, and presented its views most effectively at the Union's expense. Nor did providing the Union the shed and portable toilet outside the plant create such an appearance of favoritism, where the anti-Union group's representatives could have handbilled outside the plant on their own time, but chose not to do so.

Finally, we decided that the Employer's citation of the neutrality agreement as its reason for maintaining existing terms and conditions of employment during the Union campaign was lawful. The Employer did not link improvements or changes in benefits to the Union campaign. Accordingly, the Employer's statements could not be viewed as tending to coerce employees to select the Union in order to obtain new benefits generally or the newly announced corporate benefits in particular. Indeed, had the Employer attempted to change benefits during the campaign, it could have invited allegations that it was unlawfully attempting to demonstrate to the employees that they did not need the Union and could do as well dealing directly with the Employer. Cf. General Electric Co., 150 NLRB 192, 195 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970).

In another case, we considered Section 8(a)(1), (2) and (3) and Section 8(b)(1)(A) and (2) allegations filed when the Employer and Union A entered into a collective-bargaining agreement at a time when Union B had already filed a representation petition.

Union A and the predecessor employer were parties to a collective-bargaining relationship covering a unit of employees at various airport terminals. Shortly before the expiration of that bargaining agreement, Union B timely filed a representation petition. While that petition was pending, another employer, the successor Employer, was awarded a contract for operating a portion of the predecessor employer's terminals. The successor Employer took over that portion of the predecessor's operations and its employees, contacted Union A, and negotiated a collective-bargaining agreement covering those terminals.

When the contract between Union A and the predecessor employer expired, the Region conducted an election in a unit of the predecessor employees at the predecessor's remaining terminals. The employees of the successor Employer did not participate in that election, which Union B won. Shortly thereafter, Union B filed a second petition to represent the successor Employer's employees at the predecessor's former terminals.

Union B submitted a declaration signed by 17 of those 24 employees stating their desire to be represented by Union B. Union B also filed charges alleging that Union A and the successor Employer had violated Sections 8(a)(1), (2) and (3) and Section 8(b)(1)(A) and (2) respectively by entering into a collective-bargaining agreement during a time when a Union B had filed a representation petition covering the predecessor's unit of employees.

We decided to dismiss the charges and to process Union B's second petition, notwithstanding the fact that it was filed during the term of the newly-reached collective-bargaining agreement.

In RCA Del Caribe, 262 NLRB 963 (1982), the Board held that the mere filing of a representation petition by an outside challenging union does not require or permit an employer to withdraw from bargaining or executing a contract with an incumbent union. Under this rule, an employer will not violate Section 8(a)(2) by postpetition negotiations, or by the execution of a contract with an incumbent, but will violate Section 8(a)(5) by withdrawing from bargaining based solely on the fact that a petition has been filed by an outside union. If the challenging union wins the Board conducted election, any contract between the employer and the incumbent union "will be null and void." Id. at 966.

The Board has also held that RCA Del Caribe requires a successor employer to recognize and bargain with the incumbent union of its predecessor's employees, even though a petition challenging the incumbent union's representation status is pending before the Board. Castaways Management, 285 NLRB 954, 959 (1987); Unit Train Coal Sales, 234 NLRB 1265 (1978). In this regard, the successor employer inherits the question concerning representation that was raised by the filing of the petition. Finally, Weather Vane Outerwear Corp., 233 NLRB 414 (1977), stands for the proposition that when a second representation petition is filed during the pendency of an unresolved question concerning representation raised by an earlier, timely filed petition, the Board's contract-bar doctrine is rendered inoperative as to the later petition.

Applying those principles, we first decided that (1) the successor Employer had been required to recognize and bargain with Union A, despite the pending question concerning representation raised by Union B's timely filed first representation petition; and (2) the successor Employer and Union A had lawfully entered into a collective bargaining agreement at that time. However, we also decided that that collective-bargaining agreement did not bar the processing of Union B's second petition, even though that second petition was filed outside the 60-90 day contract bar window period.

The successor Employer and Union A entered into their bargaining agreement at a time when there was a pending question concerning representation raised by Union B's first petition. That question concerning representation remained unresolved when Union B filed its second petition, because the Board had not yet certified the results of the election resulting from the first petition until after that time. Therefore, Union B's second petition was filed during the pendency of an unresolved question concerning representation raised by the earlier petition. Under Weather Vane Outerwear, above, the Board's contract-bar doctrine was rendered inoperative as to the later petition. We therefore decided to dismiss the charges and to invite the Region to conduct an election. We noted, if Union B were certified as the winner of that election, the contract between the successor Employer and Union A would become null and void.

EMPLOYER DISCRIMINATION

In a salting case we considered whwether an employer who maintained facially neutral hiring policies applied them in a discriminatory manner.

The policies included, inter alia, accepting applications only when hiring was taking place; keeping applications on file for only 30 days; conducting interviews only at set times of day, not allowing group applications, confining applications to a limited pool of candidates such as former employees, friends and relatives of employees, and so forth. However, notwithstanding signage that the employer was not accepting applications or hiring, the employer actively solicited new hires from non-union sources throughout the entire construction season. Further, it hired some employees with questionable skills or transferred them from other jobs, while, at the same time, it refused to consider two additional applicants with undisputed qualifications who were recommended by an incumbent employee at the behest of the employer but who were known to be union supporters. Finally, there were statements by supervisors that the employer was not accepting applications or hiring because of the union’s salting campaign

Under these circumstances, we decided that we could establish a prima facie case under FES (A Division of Thermopower), 331 NLRB No. 20 (2000), to establish that an employer violated Sections 8(a)(1) and (3) by refusing to consider and/or hire union applicants. Specifically, it could be shown that the employer entertained concrete plans to hire, that the union applicant who was not hired as well as the two who were not considered were qualified, that anti-union animus contributed to the decision not to hire/consider and, finally, that at least one available opening existed even if it was not filled. Thus, the inference was deemed warranted that the employer’s hiring policies were applied as a pretext to avoid hiring or considering qualified union applicants.

With respect to the single union applicant who was permitted to fill out an application but who was not hired, the General Counsel could establish the existence of at least one opening at the hearing on the merits so as to warrant an "instatement" and make-whole remedy. In this regard, there was no evidence that the Employer invoked the 30-day requirement regarding the length of time an application remained active to reject any other new hire. The Employer’s contention that it refused to hire the applicant based on its policy of limiting new hires to a distinct class to which he did not belong (friends, relatives and former employees) was deemed indefensible inasmuch as the policy was not applied in a uniform manner.

With respect to the refusal to consider the two additional union applicants who were not hired even though they were recommended by an incumbent employee under the hiring policy, the General Counsel could meet its burden under FES, at the hearing on the merits, to show that the employer excluded qualified applicants from the hiring process and that anti-union animus contributed to the decision so as to warrant a cease and desist order requiring the employer to consider them in accord with non-discriminatory criteria. We determined that the employer could not meet its burden under FES to show that the two applicants would not have been considered even in the absence of their union affiliation. Alternatively, it was concluded that the employer refused to hire them or ceased hiring altogether for discriminatory reasons so that an "instatement" and backpay remedy as to one of them would be appropriate.

EMPLOYER REFUSAL TO BARGAIN

We next considered a case whether, following an internal Local Union election, the Local unlawfully withdrew recognition from another Union which had been representing the Local's Business Agents.

At an internal Local election, the slate of incumbent officials lost their offices with the exception of the Local President. The Local's appointed Business Agents and organizers heard rumors that they would be discharged by the newly elected officials, who were scheduled to soon take office. The employees therefore formed the Union, electing two Local Business Agents as officers. Around one week later, the Union filed a Board election petition and requested voluntary recognition from the Local. The Local's Executive Board, comprised of its then "lame duck" officers, voted to extend recognition to the Union.

The Local and the Union then quickly entered into a bargaining agreement which was executed on behalf of the Local by two of the "lame duck" officers. This bargaining agreement contained a "just cause" for discharge provision, requiring that employees would not be discharged except for dishonesty without prior progressive discipline. The Local did not obtain either the approval of the membership or the approval of the newly elected officials for this agreement.

The newly elected Secretary-Treasurer wrote to the International President asking for help in resolving the pending internal power struggle over the Business Agents and organizers. In this letter, the Secretary-Treasurer stated that the current officers had apparently recognized a staff union, and signed a collective-bargaining agreement with that staff union, to attempt to protect the business agents from any hiring or firing decisions which the new Secretary-Treasurer might make. The International President replied that the current Business Agents were appointed, and such appointments expired with the term of the current officers. The International President then stated that these employees could not have an expectation that they would automatically remain employed under the Local's new administration.

When the newly elected Local officials assumed office, they immediately convened an emergency Executive Board session and discharged all six Business Agents and organizers. The employees protested the discharges, and also attempted to file a grievance under their bargaining agreement. The new Local Secretary-Treasurer replied that he didn't recognize the bargaining agreement, and later stated that he also would not recognize the Union.

The Business Agents filed Section 8(a)(3) charges attacking their discharge as unlawful. We dismissed those charges because it is well settled that newly elected Union officials can lawfully remove Business Agents who had been appointed by the outgoing Union regime. See Shenango Inc., 237 NLRB 1355 (1978), (union did not violate Section 8(b)(1)(A) by removing safety committee chairman from appointed position because of his support of particular candidate in internal union election; union has legitimate interest in appointing to office those individuals it considered can best serve the union).

Regarding the Local's withdrawal of recognition from the Union, the Local argued that the "lame duck" officials had violated the International Union's Constitution when they had recognized the Union and executed a bargaining agreement. In that regard, the Local furnished two recent decisions of the International Union General Executive Board (GEB). In those decisions, the GEB imposed discipline upon "lame duck" local officers who had executed a bargaining agreement covering employees of their local without consulting the newly elected officers and obtaining membership approval.

The GEB decisions in turn relied upon International Union Constitutional provisions which provided that (1) only a local's Executive Board, and not its officers, may enter into a bargaining agreement covering local employees; and (2) a bargaining agreement entered into during an interregnum period, i.e., after the date of an internal local election but before the newly elected officials assume office, constitutes an "extraordinary expenditure", which requires the approval of both the newly elected officers and also the local membership. In these GEB decisions, "lame duck" officers were disciplined for having failed to meet one or more of these requirements when they agreed to a bargaining agreement covering local employees during an interregnum period.

We decided that (1) the Local did not unlawfully repudiate the Union bargaining agreement, because its execution by the "lame duck" officers was an ultra vires act under the International Constitution; (2) the discharges not only did not violate Section 8(a)(3) but also did not violate Section 8(a)(5) because they did not constitute a unilateral change from the established Local past practice of removing appointed officials after an internal election; and finally (3) although the Local arguably had unlawfully withdrawn recognition from the Union, further proceedings on this allegation would not effectuate the purposes and policies of the Act absent evidence that the current Business Agents and organizers wished to be represented by the Union.

The Board has held that when union officers agree to self-serving agreements contrary to their fiduciary duty and contrary to the union's constitution or bylaws, such agreements exceed the scope of the union officers' authority and are entered "ultra vires." Dominick's Finer Foods, Inc., 308 NLRB 935, 947 (1992), enfd. 146 LRRM 2784 (7th Cir. 1994) ("Because such actions on their part were ultra vires, they were void ab initio"). In enforcing the Board's order in Dominick's Finer Foods, Inc., the Seventh Circuit specifically noted that the union officers there "acted ultra vires . . . and thus the memoranda of agreement, disclaimer of interest, and dues check-offs were all void." 146 LRRM at 2788. When the other parties to an such agreement are aware or should have been aware of this overstepping of authority, there is no basis for finding agency based upon the apparent authority of the union officers. The Board therefore will find that such agreements are "void ab initio." Id., 308 NLRB at 947-948.

In our case, the "lame duck" officials had entered into the Union bargaining agreement in clear violation of the authority accorded them under the International Union's Constitution. The agreement was thus void unless the Union could have relied upon the apparent authority of the "lame duck" officials to enter into such agreement. We decided that the Union here could not rely upon any apparent authority of the "lame duck" officials.

First, the Union was not an outside organization wholly unfamiliar with the Local and the International Constitution. To the contrary, the Union was comprised of Local Business Agents and organizers who either knew or should have known about the International Constitution provisions stating that the Local officers did not have authority to enter into an interregnum bargaining agreement without obtaining approval from both the Local membership and also the newly elected officers. In addition, the bargaining agreement itself was intended to circumvent the authority of the newly elected officials. In that regard, the bargaining agreement contained a "just cause" provision apparently designed to prevent the newly elected officials from discharging the appointed employees whose term of office had expired. In sum, the Union knew or should have known that the "lame duck" officials not only were acting without proper authority, but had agreed to a collective bargaining agreement designed to circumvent proper authority. Thus we decided that this bargaining agreement was void.

Next we decided that the discharges did not otherwise violate Section 8(a)(5) because they did not constitute a unilateral change from established past practice. As noted, supra, the Business Agents and organizers formed the Union in anticipation of being summarily discharged from their appointed offices. The International President also confirmed that, since the appointments of the business Agents and organizers expired with the term of the current officers, they could not have had an expectation that they would automatically remained employed under the Local's new administration. Thus it appeared that the Local had acted in accord with established Union past practice in terminating these appointed employees, and had not effected any unilateral change.

Finally, we noted that the Local's withdrawal of recognition from the Union arguably violated Section 8(a)(5). It appeared that the Local's initial recognition of the Union was wholly lawful under both the Act and the International constitution. The Union had demonstrated majority support, and recognition was accorded pursuant to a vote by the Local's Executive board. Thus the Local could not demonstrate that this recognition was void as an "ultra vires" act. The GEB decisions furnished by the Local merely imposed discipline upon outgoing officials who executed bargaining agreements in derogation of their authority under the International Constitution. These decisions had not vitiated those collective bargaining agreements; they had not even addressed the underlying union recognition granted by the "lame duck" officials. Hence these GEB decisions provided no support for the Local's argument that the Union's initial recognition was unlawful.

We noted, however, that the Local had lawfully discharged the employees initially represented by the Union. Thus the Union would only represent the replacement Business Agents and organizers, and these employees presumably were loyal to the newly elected officials. We therefore decided that, although the Local had unlawfully with