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The Guard Publishing Company, d/b/a The Register Guard 
Cases 36–CA–8743–1, 36–CA–8849–1, 36–CA–8789–1, and 36–CA–8842–1 
December 16, 2007 

  

DECISION AND ORDER 
By Chairman Battista and members Liebman, Schaumber, Kirsanow, and Walsh  

 

In this case, we consider several issues relating to employees’ use of their employer’s e-mail system for Section 7 purposes.  First, we consider whether the Respondent violated Section 8(a)(1) by maintaining a policy prohibiting the use of e-mail for all “non-job-related solicitations.”  Second, we consider whether the Respondent violated Section 8(a)(1) by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails, and Section 8(a)(3) and (1) by disciplining an employee for sending union-related e-mails.  Finally, we consider whether the Respondent violated Section 8(a)(5) and (1) by insisting on an allegedly illegal bargaining proposal that would prohibit the use of e-mail for “union business.”

After careful consideration, we hold that the Respondent’s employees have no statutory right to use the Respondent’s e-mail system for Section 7 purposes.  We therefore find that the Respondent’s policy prohibiting employee use of the system for “non-job-related solicitations” did not violate Section 8(a)(1).

With respect to the Respondent’s alleged discriminatory enforcement of the e-mail policy, we have carefully examined Board precedent on this issue.  As fully set forth herein, we have decided to modify the Board’s approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction along Section 7 lines.  We then address the specific allegations in this case of discriminatory enforcement in accordance with this approach.

Finally, we find that the Respondent did not insist on its bargaining proposal prohibiting the use of e-mail for “union business.”  Therefore, we dismiss the allegation that the Respondent insisted on an illegal subject in violation of Section 8(a)(5) and (1).

i.  background

On February 21, 2002, Administrative Law Judge John J. McCarrick issued the attached decision.  The Respondent and the General Counsel each filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a supporting brief.  The General Counsel and Charging Party each filed an answering brief to the Respondent’s exceptions.  The Respondent filed an answering brief to the General Counsel’s exceptions and a reply brief to the Charging Party’s answering brief.

On January 10, 2007, the National Labor Relations Board issued a notice of oral argument and invitation to the parties and interested amici curiae to file briefs.  The notice requested that the parties address specific questions concerning employees’ use of their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other Section 7 matters. The Board’s questions included, among other things, whether employees have a Section 7 right to use their employer’s e-mail system to communicate with one another, what standard should govern that determination, and whether an employer violates the Act if it permits other nonwork-related e-mails but prohibits e-mails on Section 7 matters.

The General Counsel, the Charging Party, the Respondent, and various amici filed briefs.1  On March 27, 2007, the Board held oral argument.

The Board has considered the decision and the record in light of the exceptions, briefs, and oral argument and has decided to affirm the judge’s rulings, findings, and conclusions in part,2 to reverse them in part, and to adopt the recommended Order as modified and set forth in full below.3

ii.  facts

A.  The Respondent’s Communications Systems Policy

The Respondent publishes a newspaper.  The Union represents a unit of about 150 of the Respondent’s employees.  The parties’ last collective-bargaining agreement was in effect from October 16, 1996 though April 30, 1999.  When the record closed, the parties were negotiating, but had not yet reached a successor agreement.

In 1996, the Respondent began installing a new computer system, through which all newsroom employees and many (but not all) other unit employees had e-mail access.  In October 1996, the Respondent implemented the “Communications Systems Policy” (CSP) at issue here.  The policy governed employees’ use of the Respondent’s communications systems, including e-mail.  The policy stated, in relevant part:

Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard.  Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.

The Respondent’s employees use e-mail regularly for work-related matters.  Throughout the relevant time period, the Respondent was aware that employees also used e-mail to send and receive personal messages.  The record contains evidence of e-mails such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.  However, there is no evidence that the employees used e-mail to solicit support for or participation in any outside cause or organization other than the United Way , for which the Respondent conducted a periodic charitable campaign.

B.  Prozanski’s E-Mails and Resulting Discipline

Suzi Prozanski is a unit employee and the union president.  In May and August 2000, Prozanski received two written warnings for sending three e-mails to unit employees at their Register-Guard e-mail addresses.  The Respondent contends that the e-mails violated the CSP.

1.  May 4, 2000 e-mail

The first e-mail involved a union rally that took place on the afternoon of May 1, 2000.  Earlier that day, Managing Editor Dave Baker sent an e-mail to employees stating that they should try to leave work early because the police had notified the Respondent that anarchists might attend the rally.  Employee Bill Bishop sent a reply e-mail to Baker and to many employees.  Bishop’s e-mail message also attached an e-mail the Union had received from the police stating that the Respondent had notified the police about the possibility of anarchists.  Thus, Bishop’s e-mail implied that Baker was mistaken or untruthful when he told employees that the police had notified the Respondent about the anarchists.

The rally took place as scheduled.  Afterward, Prozanski learned that certain statements in Bishop’s e-mail had been inaccurate.  On May 2, Prozanski told Baker that she wanted to communicate with employees to “set the record straight.”  Baker told her to wait until he talked to Human Resources Director Cynthia Walden.  On May 4, Prozanski had not heard back from management about her request, so she told Baker that she was going to send an e-mail response.  Baker said, “I understand.”4  Prozanski then sent an e-mail entitled, “setting it straight.”  She composed the e-mail on her break but sent it from her work station.  A few hours later, Baker told Prozanski that she should not have used company equipment to send the e-mail.

Prozanski’s e-mail began: “In the spirit of fairness, I’d like to pass on some information to you. . . .  We have discovered that some of the information given to you was incomplete. . . .  The Guild would like to set the record straight.”  The e-mail then set forth the facts surrounding the call to police about anarchists attending the rally.  The e-mail was signed, “Yours in solidarity, Suzi Prozanski.”

On May 5, Baker issued Prozanski a written warning for violating the CSP by using e-mail for “conducting Guild business.”5

2.  E-Mails on August 14 and 18, 2000

Prozanski received a second written warning on August 22, 2000, for two e-mails sent on August 14 and 18.  The August 14 e-mail asked employees to wear green to support the Union ’s position in negotiations.  The August 18 e-mail asked employees to participate in the Union ’s entry in an upcoming town parade.  As with the May 4 e-mail, Prozanski sent these e-mails to multiple unit employees at their Register-Guard e-mail addresses.  However, this time she sent the e-mails from a computer in the Union ’s office, located off the Respondent’s premises.  Prozanski testified she thought that the May 5 warning was for using the Company’s equipment to send the message, and that there would be no problem if she sent e-mails from the Union ’s office instead.  On August 22, however, Walden issued Prozanski a written warning, stating that Prozanski had violated the CSP by using the Respondent’s communications system for Guild activities.  The warning quoted the CSP’s prohibition on “non-job-related solicitations.”

C.  Respondent’s Bargaining Proposal
Concerning E-Mail Use

About October 25, 2000, during bargaining, the Respondent presented the Union with “counterproposal 26,” which proposed the following contract language:

The electronic communications systems are the property of the Employer and are provided for business use only.  They may not be used for union business.

On November 15, 2000, the Respondent clarified to the Union in writing that counterproposal 26 “only prohibits use of the systems for union business.”  (Emphasis in original.)  The Respondent stated that its existing CSP “will govern the use of systems in situations ‘other than’ union business.”

On November 16, 2000, the Union stated that it would not respond to the proposal because the Union viewed the proposal as illegally restricting Section 7 rights.  On November 30, 2000, the Union filed a charge alleging that the Respondent violated Section 8(a)(5) by proposing counterproposal 26.  The Region dismissed the charge on March 31, 2001.

In April 2001, the Union requested, and the Respondent provided, additional information on the scope of counterproposal 26.  On April 21, the parties also discussed the proposal at the bargaining table.  The Union’s lead negotiator, Lance Robertson, noted that the Union ’s unfair labor practice charge had been dismissed.  Although Robertson continued to press for additional clarification of the proposal, he also told the Respondent:  “I’m here to bargain a proposal.”  At the hearing, he testified that the Union ’s position as of April 21 was that it “neither accepted nor rejected” counterproposal 26.  The Union never made a counterproposal.  The parties stipulated that counterproposal 26 has been the Respondent’s position since October 25, 2000.

On April 24, 2001, the Union filed a new charge alleging that the Respondent had proposed and “refus[ed] to withdraw” counterproposal 26.  On August 13, 2001, the Region revoked its dismissal of the previous charge.

iii.  the judge’s decision

Noting that an employer may lawfully limit employee use of the employer’s equipment or media, the judge found that the Respondent did not violate Section 8(a)(1) by maintaining the CSP.  However, the judge found that the Respondent did violate Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit union-related e-mails while allowing a variety of other nonwork-related e-mails.  The judge also found that the Respondent violated Section 8(a)(3) and (1) by disciplining Prozanski for her May 4 and August 14 and 18 e-mails.  Finally, the judge found that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26, which the judge found was a codification of the Respondent’s discriminatory practice of allowing personal e-mails but not union-related e-mails.

iv.  positions of the parties and amici

A.  The General Counsel

The General Counsel argues that under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), rules limiting employee communication in the workplace should be evaluated by balancing employees’ Section 7 rights and the employer’s interest in maintaining discipline.  The General Counsel contends that e-mail cannot neatly be characterized as either “solicitation” or “distribution.”  Nevertheless, e-mail has become the most common “gathering place” for communications on work and nonwork issues.  Because the employees are rightfully on the employer’s property, the employer does not have an indefeasible interest in banning personal e-mail just because the employer owns the computer system.  The General Counsel distinguishes the Board’s decisions that find no Section 7 right to use an employer’s bulletin boards, telephones, and other equipment6 on the basis that those cases did not involve interactive, electronic communications regularly used by employees, nor did they involve equipment used on networks where thousands of communications occur simultaneously.  However, the General Counsel concedes that the employer has an interest in limiting employee e-mails to prevent liability for inappropriate content, to protect against system overloads and viruses, to preserve confidentiality, and to maintain productivity.

The General Counsel therefore proposes that broad rules prohibiting nonbusiness use of e-mail should be presumptively unlawful, absent a particularized showing of special circumstances.  The General Counsel would evaluate other limitations on employee e-mail use (short of a complete ban) on a case-by-case basis.

With respect to whether an employer may prohibit employees from sending union-related e-mails while allowing other personal e-mails, the General Counsel notes that this conduct would violate Section 8(a)(1) under current Board precedent.  The General Counsel disagrees with the Respondent’s contention that employees communicating about a union are working on behalf of an “outside organization.”

B.  The Charging Party and Amicus AFL–CIO

The Charging Party and AFL–CIO jointly filed a pre-argument brief.  They contend that where an employer allows employees to use the e-mail system to communicate with each other on nonbusiness matters generally, the employees are already rightfully on the employer’s property, in the sense that they have been allowed access to the e-mail system.  Thus, it is the employer’s management interests, not its property interests, that are implicated.  The employer may impose a nondiscriminatory restriction on e-mail communications during working time, but may impose additional restrictions only by showing that they are necessary to further substantial management interests.

In a reply brief, the Charging Party argues that if the Board is faced with a conflict between property rights and Section 7 rights, the Board must balance the two sets of interests.  The Board should first determine the impact of the restriction on employee rights, and then determine the effect on the employer’s property rights of forbidding the restriction.

With respect to enforcement of the CSP, the Charging Party and AFL–CIO argue that, because the Respondent allowed personal use of e-mail generally, the Respondent violated the Act by enforcing the CSP against Prozanski for sending union-related messages.

C.  The Respondent

The Respondent argues that there is no Section 7 right to use the Respondent’s e-mail system.  E-mail, as part of the computer system, is equipment owned by the Respondent for the purpose of conducting its business.  The Respondent notes that under Board precedent, an employer may restrict the nonbusiness use of its equipment.  The Respondent argues that Republic Aviation and other cases dealing with oral solicitation are inapposite because they do not involve use of the employer’s equipment.  The Respondent observes that the Union and employees here have many means of communicating in addition to e-mail.

With respect to whether an employer has discriminatorily enforced its e-mail prohibition, the Respondent argues that the correct comparison is not between personal e-mails and union-related e-mails.  Rather, the Respondent argues that in order to determine whether discriminatory enforcement has occurred, the Board should examine whether the employer has banned union-related e-mails but has permitted outside organizations to use the employer’s equipment to sell products, to distribute “persuader” literature, to promote organizational meetings, or to induce group action.  The Respondent argues that under this standard, the enforcement of the CSP against Prozanski was not discriminatory.

D.  Amici Supporting the General Counsel and
Charging Party

The National Employment Lawyers Association (NELA) argues that employer e-mail systems are no different from lunchrooms or breakrooms, and that any attempt to proscribe e-mail communications on non-working time would contravene Republic Aviation.  With respect to enforcement of the CSP against Prozanski, NELA notes that the Respondent’s CSP prohibits only “non-job-related” solicitations.  NELA contends that the union-related e-mails for which Prozanski was disciplined should be considered job-related.

The National Workrights Institute argues that e-mail is becoming the predominant method of business communication, and that most employer e-mail policies allow some personal use.  However, the Institute contends that most policies are vague and applied on an ad hoc basis, and such uncertainty chills employee use of e-mail for Section 7 purposes.  Thus, the Institute argues, banning union-related e-mails, either officially or in practice, should be deemed to violate Section 8(a)(1).

E.  Amici Supporting the Respondent

Amici supporting the Respondent emphasize the employer’s property interest.  They argue that an employer should be permitted to impose nondiscriminatory restrictions on e-mail use, just as the employer may do with respect to its other equipment.  The HR Policy Association, the Minnesota Management Attorneys Association, and the United States Chamber of Commerce contend that e-mail does not fit neatly into the Board’s analytical framework for workplace solicitation and distribution.  The Employers Group and the HR Policy Association also contend, alternatively, that if the Board does decide to analyze e-mail as either solicitation or distribution, e-mail should be considered more analogous to distribution.  The Employers Group and the United States Chamber of Commerce further argue that an employer that does allow personal e-mail use must be permitted to impose reasonable, nondiscriminatory limits on e-mail use, such as those relating to the size of messages, the size of attachments, and the number of recipients.

Amici supporting the Respondent generally argue that an employer does not violate the Act simply because it permits some personal e-mails while prohibiting solicitations on behalf of unions or other organizations.

v.  discussion

For the reasons set forth below, we agree with the judge that the Respondent did not violate Section 8(a)(1) by maintaining the CSP.  We also agree with the judge that the Respondent’s enforcement of the CSP with respect to Prozanski’s May 4 e-mail was discriminatory and therefore violated Section 8(a)(1).  Likewise, the written warning issued to Prozanski for the May 4 e-mail violated Section 8(a)(3) and (1).

However, we reverse the judge and dismiss the allegations that the Respondent’s application of the CSP to Prozanski’s August 14 and 18 e-mails was discriminatory.  We also find no 8(a)(3) violation as to Prozanski’s discipline for those e-mails.  Finally, we reverse the judge and dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26.

A.  Maintenance of the CSP

The CSP, in relevant part, prohibits employees from using the Respondent’s e-mail system for any “non-job-related solicitations.”  Consistent with a long line of cases governing employee use of employer-owned equipment, we find that the employees here had no statutory right to use the Respondent’s e-mail system for Section 7 matters.  Therefore, the Respondent did not violate Section 8(a)(1) by maintaining the CSP.

An employer has a “basic property right” to “regulate and restrict employee use of company property.”  Union Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir. 1983).  The Respondent’s communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business.  The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.

Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression.  In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory.7  Mid-Mountain Foods, 332 NLRB 229, 230 (2000) (no statutory right to use the television in the respondent’s breakroom to show a prounion campaign video), enfd. 269 F.3d 1075 (D.C. Cir. 2001).  See also Eaton Technologies, 322 NLRB 848, 853 (1997) (“It is well established that there is no statutory right of employees or a union to use an employer’s bulletin board.”); Champion International Corp., 303 NLRB 102, 109 (1991) (stating that an employer has “a basic right to regulate and restrict employee use of company property” such as a copy machine); Churchill’s Supermarkets, 285 NLRB 138, 155 (1987) (“[A]n employer ha[s] every right to restrict the use of company telephones to business-related conversations. . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988), cert. denied 490 U.S. 1046 (1989); Union Carbide Corp., 259 NLRB 974, 980 (1981) (employer “could unquestionably bar its telephones to any personal use by employees”), enfd. in relevant part 714 F.2d 657 (6th Cir. 1983); cf. Heath Co., 196 NLRB 134 (1972) (employer did not engage in objectionable conduct by refusing to allow prounion employees to use public address system to respond to antiunion broadcasts).8

Our dissenting colleagues, however, contend that this well-settled principle—that employees have no statutory right to use an employer’s equipment or media for Section 7 communications—should not apply to e-mail systems.  They argue that the decisions cited above involving employer telephones—Churchill’s Supermarkets and Union Carbide—were decided on discriminatory enforcement grounds, and therefore their language regarding an employer’s right to ban nonbusiness use of its telephones was dicta.  The Board, however, reaffirmed Union Carbide in Mid-Mountain Foods, supra, citing it for the specific principle that employees have no statutory right to use an employer’s telephone for non-business purposes.  See 332 NLRB at 230.

Nevertheless, our dissenting colleagues assert that the issue of employees’ use of their employer’s e-mail system should be analyzed under Republic Aviation v. NLRB, 324 U.S. 793 (1945), by balancing employees’ Section 7 rights and the employer’s interest in maintaining discipline, and that a broad ban on employee nonwork-related e-mail communications should be presumptively unlawful absent a showing of special circumstances.  We disagree and find the analytical framework of Republic Aviation inapplicable here.

In Republic Aviation, the employer maintained a general rule prohibiting all solicitation at any time on the premises.  The employer discharged an employee for soliciting union membership in the plant by passing out application cards to employees on his own time during lunch periods.  The Board found that the rule and its enforcement violated Section 8(a)(1), and the Supreme Court affirmed.  The Court recognized that some “dislocation” of employer property rights may be necessary in order to safeguard Section 7 rights.  See 324 U.S. at 802 fn. 8.  The Court noted that the employer’s rule “entirely deprived” employees of their right to communication in the workplace on their own time.  Id. at 801 fn. 6.  The Court upheld the Board’s presumption that a rule banning all solicitation during nonworking time is “an unreasonable impediment to self-organization . . . in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.”  Id. at 803 fn. 10.  Otherwise, employees would have no time at the workplace in which to engage in Section 7 communications.9

In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s CSP does not regulate traditional, face-to-face solicitation.  Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk.  What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted.  Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.”  Guardian Industries Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir. 1995); see also NLRB v. United Steelworkers (Nutone), 357 U.S. 357, 363–364 (1958) (The Act “does not command that labor organizations as a matter of law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communications simply because the Employer is using it.”).  Republic Aviation requires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” 324 U.S. at 801 fn. 6, of their ability to engage in Section 7 communications in the workplace on their own time.  It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.10  Indeed, the cases discussed above, in which the Board has found no Section 7 right to use an employer’s equipment, were decided long after Republic Aviation and have been upheld by the courts.  See, e.g., NLRB v. Southwire Co., 801 F.2d 1252, 1256 (11th Cir. 1986) (no statutory right to use an employer’s bulletin board); Union Carbide Corp. v. NLRB, 714 F.2d 657, 663 (6th Cir. 1983) (“As recognized by the ALJ, Union Carbide unquestionably had the right to regulate and restrict employee use of company property.”) (emphasis in original).

The dissent contends that because the employees here are already rightfully on the Respondent’s premises, only the Respondent’s managerial interests—and not its property interests—are at stake.  That would be true if the issue here concerned customary, face-to-face solicitation and distribution, activities that involve only the employees’ own conduct during nonwork time and do not involve use of the employer’s equipment.  Being rightfully on the premises, however, confers no additional right on employees to use the employer’s equipment for Section 7 purposes regardless of whether the employees are authorized to use that equipment for work purposes.11

The dissent contends that e-mail has revolutionized business and personal communications and that, by failing to carve out an exception for it to settled principles regarding use of employer property, we are failing to adapt the Act to the changing patterns of industrial life.  The dissent attempts to distinguish use of e-mail from other communication equipment based on e-mail’s interactive nature and its ability to process thousands of communications simultaneously.

We recognize that e-mail has, of course, had a substantial impact on how people communicate, both at and away from the workplace.  Moreover, e-mail has some differences from as well as some similarities to other communications methods, such as telephone systems. For example, as the dissent points out, transmission of an e-mail message, unlike a telephone conversation, does not normally “tie up” the line and prevent the simultaneous transmission of messages by others.  On the other hand, e-mail messages are similar to telephone calls in many ways.  Both enable virtually instant communication regardless of distance, both are transmitted electronically, usually through wires (sometimes the very same fiber-optic cables) over complex networks, and both require specialized electronic devices for their transmission.  Although the widespread use of telephone systems has greatly impacted business communications, the Board has never found that employees have a general right to use their employer’s telephone system for Section 7 communications.

In any event, regardless of the extent to which communication by e-mail systems is similar to or different from communication using other devices or systems, it is clear that use of the Respondent’s e-mail system has not eliminated face-to-face communication among the Respondent’s employees or reduced such communication to an insignificant level.  Indeed, there is no contention in this case that the Respondent’s employees rarely or never see each other in person or that they communicate with each other solely by electronic means.  Thus, unlike our dissenting colleagues, we find that use of e-mail has not changed the pattern of industrial life at the Respondent’s facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been rendered useless and that employee use of the Respondent’s e-mail system for Section 7 purposes must therefore be mandated.  Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.12

Accordingly, we hold that the Respondent may lawfully bar employees’ nonwork-related use of its e-mail system, unless the Respondent acts in a manner that discriminates against Section 7 activity.13  As the CSP on its face does not discriminate against Section 7 activity, we find that the Respondent did not violate Section 8(a)(1) by maintaining the CSP.

B.  Alleged Discriminatory Enforcement of the CSP

The judge found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit Prozanski’s union-related e-mails while allowing other nonwork-related e-mails.  We affirm the violation as to Prozanski’s May 4 e-mail, but reverse and dismiss as to her August e-mails.  In doing so, we modify Board law concerning discriminatory enforcement.14

1.  The appropriate analysis for alleged
discriminatory enforcement

In finding that the Respondent discriminatorily enforced the CSP, the judge relied on evidence that the Respondent had permitted employees to use e-mail for various personal messages.  Specifically, the record shows that the Respondent permitted e-mails such as jokes, baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.15  However, there is no evidence that the Respondent allowed employees (or anyone else) to use e-mail to solicit support for or participation in any outside cause or organization other than the United Way , for which the Respondent conducted a periodic charitable campaign.

Citing Fleming Co., 336 NLRB 192 (2001), enf. denied 349 F.3d 968 (7th Cir. 2003), the judge found that “[i]f an employer allows employees to use its communications equipment for nonwork related purposes, it may not validly prohibit employee use of communications equipment for Section 7 purposes.”  We agree with the judge that the Board’s decision in Fleming would support that proposition.  However, having carefully examined current precedent, we find that the Board’s approach in Fleming and other similar cases fails to adequately examine whether the employer’s conduct discriminated against Section 7 activity.

In Fleming, the Board held that the employer violated Section 8(a)(1) by removing union literature from a bulletin board because the employer had allowed “a wide range of personal postings” including wedding announcements, birthday cards, and notices selling personal property such as cars and a television.  There was no evidence that the employer had allowed postings for any outside clubs or organizations.  Id. at 193–194.16  Likewise, in Guardian Industries, 313 NLRB 1275 (1994), enf. denied 49 F.3d 317 (7th Cir. 1995), the Board found an 8(a)(1) violation where the employer allowed personal “swap and shop” postings but denied permission for union or other group postings, including those by the Red Cross and an employee credit union.

The Seventh Circuit denied enforcement in both cases.  Fleming, supra, 349 F.3d at 968; Guardian, supra, 49 F.3d at 317.  In Guardian, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).”  Id. at 317.  Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals.  See id. at 319.  The court emphasized that the employer had never allowed employees to post notices of organizational meetings.  Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale.  The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.”  Id. at 319.  The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.”  Id. at 320.

In Fleming, the court reaffirmed its decision in Guardian and further stated:

 

Just as we have recognized for-sale notices as a category of notices distinct from organizational notices (which would include union postings), we can now add the category of personal postings.  The ALJ’s factual finding that Fleming did not allow the posting of organizational material on its bulletin boards does not support the conclusion that Fleming violated Section 8(a)(1) by prohibiting the posting of union materials.

 

349 F.3d at 975.

We find that the Seventh Circuit’s analysis, rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.  Thus, in order to be unlawful, discrimination must be along Section 7 lines.  In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.  See, e.g., Fleming, supra, 349 F.3d at 975 (“[C]ourts should look for disparate treatment of union postings before finding that an employer violated Sec. 8(a)(1).”); Lucile Salter Packard Children’s Hospital at Stanford v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996) (charging party must demonstrate that “the employer treated nonunion solicitations differently than union solicitations”).

For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.17  In either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.  However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.  That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.18  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.19

The dissent contends that our analysis is misplaced because, in 8(a)(1) cases, discrimination is not the essence of the violation. Rather, the dissent asserts that discrimination is relevant in 8(a)(1) cases merely because it weakens or exposes as pretextual the employer’s business justification for its actions.  In our view, the dissent overlooks the Supreme Court’s inhospitable response to this theory and too readily writes off discrimination as the essential basis of many 8(a)(1) violations.

The dissent argues that denying employees access to the employer’s e-mail system for union solicitations while permitting access for other types of messages undermines the employer’s business justification and constitutes discrimination.  This argument is at odds with Supreme Court precedent.  In NLRB v. Steelworkers, 357 U.S. 357 (1958), the Court reviewed the Board’s finding in Avondale Mills, 115 NLRB 840 (1956), that the employer violated Section 8(a)(1) when it denied employees worktime access to their coworkers for union solicitation while permitting supervisors to engage in antiunion solicitation on working time.  Even though supervisors and employees were not similarly situated, the Board found the employer’s rule discriminatory because it diminished the employees’ ability to communicate their organizational message and the employer’s exception for supervisors belied the working-time-is-for-work justification.  Id. at 842.  The Supreme Court disagreed. Although the Court left the Board free in future cases to proceed on a theory of actual discrimination, it rejected the notion that a difference in treatment between any two groups not similarly situated that undermines the employer’s asserted business justification violates Section 8(a)(1).  According to the Court, there could be no unfair labor practice finding in such circumstances unless, in view of the available alternate channels of communication, the employer had truly diminished the ability of the labor organization involved to carry its message to the employees.

It is not surprising, therefore, that the dissent fails to acknowledge that many decisions require actual discrimination.  For example, as the Board noted in Salmon Run Shopping Center, 348 NLRB No. 31 (2006), the Supreme Court has held that “an employer violates 8(a)(1) of the Act by prohibiting nonemployee distribution of union literature if its actions ‘discriminate against the union by allowing other distribution.’”   Id. , slip op. at 1, quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).  After determining that the employer’s decision to deny the union access was based “solely on the Union ’s status as a labor organization and its desire to engage in labor-related speech,” the Board found in Salmon Run that “[s]uch discriminatory exclusion” violated Section 8(a)(1).   Salmon Run Shopping Center , above, slip op. at 2.

Similarly, in Enloe Medical Center , 348 NLRB No. 63 (2006), the Board found that the employer violated Section 8(a)(1) by sending employees a message stating that “it is not appropriate for union literature to be . . . placed in our breakroom.”  The Board found that the message was discriminatory, and therefore unlawful, because it “barred only union literature, and no other, from being placed in the breakroom.”  Id. , slip op. at 1.

To be sure, the cases on which the dissent relies include language suggesting that the employers’ unlawful, discriminatory conduct tended to undermine their asserted business justifications.20  However, the presence of such language in those cases does not negate the many cases that find discriminatory conduct violative of Section 8(a)(1) purely on the basis of the conduct’s discriminatory nature.

We therefore adopt the position of the court in Guardian and Fleming that unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status, and we shall apply this view in the present case and in future cases.21  Accordingly, in determining whether the Respondent discriminatorily enforced the CSP, we must examine the types of e-mails allowed by the Respondent and ask whether they show discrimination along Section 7 lines.22

2.  Application of the standard

Prozanski’s August 14 e-mail urged all employees to wear green to support the Union .  Her August 18 e-mail urged employees to participate in the Union ’s entry in a local parade.  Both messages called for employees to take action in support of the Union .  The evidence shows that the Respondent tolerated personal employee e-mail messages concerning social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or other similar personal items.  Notably, however, there is no evidence that the Respondent permitted employees to use e-mail to solicit other employees to support any group or organization.23  Thus, the Respondent’s enforcement of the CSP with respect to the August 14 and 18 e-mails did not discriminate along Section 7 lines, and therefore did not violate Section 8(a)(1).24

Prozanski’s May 4 e-mail, however, was not a solicitation.  It did not call for action; it simply clarified the facts surrounding the Union ’s rally the day before.  As noted above, the Respondent permitted a variety of nonwork-related e-mails other than solicitations.  Indeed, the CSP itself prohibited only “non-job-related solicitations,” not all non-job-related communications.  The only difference between Prozanski’s May e-mail and the e-mails permitted by the Respondent is that Prozanski’s e-mail was union-related.  Accordingly, we find that the Respondent’s enforcement of the CSP with respect to the May 4 e-mail discriminated along Section 7 lines and therefore violated Section 8(a)(1).25

C.  The 8(a)(3) Allegations

We agree with the judge that the May 5 warning to Prozanski violated Section 8(a)(3) and (1).  Contrary to the judge, however, we find it unnecessary to engage in a Wright Line26 analysis.  Wright Line is appropriately used in cases “turning on employer motivation.”  251 NLRB at 1089.  A Wright Line analysis is not appropriate where the conduct for which the employer claims to have disciplined the employee was union or other protected activity.  See St. Joseph’s Hospital, 337 NLRB 94, 95 (2001) (warning for displaying union-related screen saver violated 8(a)(3) where employer allowed other nonwork-related screen savers), enfd. 55 Fed. Appx. 902 (11th Cir. 2002); Saia Motor Freight Line, Inc., 333 NLRB 784, 785 (2001) (8(a)(3) violation found where employee was disciplined for “distributing union literature”).

Here, the May 5 warning stated that Prozanski “used the company’s e-mail system expressly for the purpose of conducting Guild business” and that this violated the CSP.  Thus, it is clear from the warning itself that the Respondent disciplined Prozanski for sending a union-related e-mail.  The issue is whether Prozanski lost the protection of the Act by using the Respondent’s e-mail system to send the message.  With respect to the May 4 e-mail, she did not.  As explained above, although there is no Section 7 right to use an employer’s e-mail system, there is a Section 7 right to be free from discriminatory treatment.  See St. Joseph’s Hospital, supra at 95.  The Respondent acted discriminatorily in applying the CSP to Prozanski’s May 4 e-mail.  Accordingly, the May 5 warning to Prozanski for sending that e-mail violated Section 8(a)(3) and (1).

However, we reverse the judge and dismiss the allegation that the August 22 warning violated Section 8(a)(3) and (1).  That warning was issued in response to Prozanski’s August 14 and 18 e-mails.  We have found above that the Respondent’s application of the CSP to prohibit those e-mails did not discriminate along Section 7 lines.  Prozanski’s conduct was therefore unprotected, and the August 22 discipline was lawful.

D.  The 8(a)(5) Allegation

The judge found that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26, which the judge found was an unlawful bargaining proposal.  We reverse.  In doing so, we find it unnecessary to decide whether counterproposal 26 was unlawful on its face.  Rather, we find the evidence insufficient to show that the Respondent insisted on the proposal.

A party violates its duty to bargain in good faith by insisting on an unlawful proposal.  See, e.g., Teamsters Local 20 ( Seaway Food Town ), 235 NLRB 1554, 1558 (1978); Thill, Inc., 298 NLRB 669, 672 (1990), enfd. in rel. part 980 F.2d 1137 (7th Cir. 1992).  However, a party does not necessarily violate the Act simply by proposing or bargaining about an unlawful subject.  Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB 766, 773 (1989), enfd. in part 905 F.2d 417 (D.C. Cir. 1990).  Rather, what the Act prohibits is “the insistence, as a condition precedent of entering into a collective bargaining agreement,” that the other party agree to an unlawful provision.  National Maritime Union (Texas Co.), 78 NLRB 971, 981–982 (1948), enfd. 175 F.2d 686 (2d Cir. 1949), cert. denied 338 U.S. 954 (1950).

Here, contrary to the dissent, we find no proof of such insistence.  The Union filed a charge alleging that the Respondent had made an unlawful proposal in violation of Section 8(a)(5).  The charge was administratively dismissed.  Thereafter, on April 21, 2001, the Union told the Respondent that the Union was prepared “to bargain a proposal” and that the Union “neither accepted nor rejected” the Respondent’s proposal.  The Union also sought clarification of the proposal, and there is no allegation that such clarification was unlawfully withheld.  Finally, there is no direct evidence that the Union asked that the proposal be removed from the table.27  In these circumstances, especially given the initial dismissal of the Union’s 8(a)(5) charge and the Union’s subsequent statements that it was prepared “to bargain a proposal” and that it “neither accepted nor rejected” the Respondent’s proposal, we find the evidence insufficient to establish that the Respondent insisted on the proposal as a condition of entering into an agreement, or that the proposal impeded negotiations on lawful subjects.28  Accordingly, we find no 8(a)(5) violation.

Amended Conclusions of Law

1.  Delete the words “and August 22” from the judge’s Conclusion of Law 2.

2.  Delete the judge’s Conclusion of Law 3.

ORDER

The National Labor Relations Board orders that the Respondent, The Guard Publishing Company d/b/a The Register-Guard, Eugene , Oregon , its officers, agents, successors, and assigns, shall

1.  Cease and desist from

(a) Discriminatorily prohibiting employees from using the Respondent’s electronic communications systems to send union-related messages.

(b) Maintaining an overly broad rule that prohibits employees from wearing or displaying union insignia while working with customers.

(c) Issuing written warnings to, or otherwise discriminating against, any employee for supporting the Eugene Newspaper Guild, CWA Local 37194 or any other labor organization.

(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2.  Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Rescind the rule prohibiting circulation department employees from wearing or displaying union insignia while working with customers.

(b) Within 14 days from the date of this Order, rescind the unlawful warning issued to Suzi Prozanski on May 5, 2000, remove from its files any reference to the unlawful warning, and within 3 days thereafter notify Prozanski in writing that this has been done and that the warning will not be used against her in any way.

(c) Within 14 days after service by the Region, post at its facility in Eugene , Oregon , copies of the attached notice marked “Appendix.”29  Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted.  Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.  In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 5, 2000.

(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply with this Order.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington , D.C.    December 16, 2007

 

______________________________________

Robert J. Battista,                                  Chairman

 

______________________________________

Peter C. Schaumber,                 Member

 

______________________________________

Peter N. Kirsanow,                                   Member

 

(seal)            National Labor Relations Board

 

Members Liebman and Walsh, dissenting in part.

Today’s decision confirms that the NLRB has become the “Rip Van Winkle of administrative agencies.”  NLRB v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992).  Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.  In 2007, one cannot reasonably contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.

National labor policy must be responsive to the enormous technological changes that are taking place in our society.  Where, as here, an employer has given employees access to e-mail for regular, routine use in their work, we would find that banning all nonwork-related “solicitations” is presumptively unlawful absent special circumstances.  No special circumstances have been shown here.  Accordingly, we dissent from the majority’s holding that the Respondent’s ban on using e-mail for “non-job-related solicitations” was lawful.

We also dissent, in the strongest possible terms,  from the majority’s overruling of bedrock Board precedent about the meaning of discrimination as applied to Section 8(a)(1).  Under the majority’s new test, an employer does not violate Section 8(a)(1) by allowing employees to use an employer’s equipment or media for a broad range of nonwork-related communications but not for Section 7 communications.  We disagree, and therefore would also affirm the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings to employee Suzy Prozanski for sending union-related e-mails.  Finally, we dissent from the majority’s finding that the Respondent did not insist on a bargaining proposal that codified the Respondent’s unlawful discriminatory practice of prohibiting union-related e-mails while allowing other nonwork-related e-mails.1

i.  facts

A.  The Respondent’s Communications Systems Policy

Since 1997, the Respondent has provided computer and e-mail access to the vast majority of its 155 unit employees.  Numerous employees testified that they spend large portions of their workday on the computer, that they use e-mail regularly, and that to some extent it has replaced in-person communication.2

The principal issues in this case revolve around a Communications Systems Policy (CSP) implemented by the Respondent.  The CSP governs employee use of the Respondent’s communications systems, including e-mail.  It states in relevant part:

 

Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard.  Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.  [Emphasis supplied.]

 

Except with respect to union activity, however, the CSP was honored (and enforced) in the breach.  In addition to using e-mail regularly for work-related matters, the Respondent’s employees, with the Respondent’s knowledge and tacit approval, also used e-mail to send and receive nonwork-related messages.  For example, the record contains hard copies of e-mails such as baby announcements, party invitations, a request for a dog walker, and offers of sports tickets.  Employees also testified that they used e-mail for such matters as making lunch plans, disseminating jokes, keeping in touch with friends and relatives, and organizing a poker group.

B.  The Respondent’s Discipline of Suzi Prozanski for
Sending Union-Related E-mails

Suzi Prozanski is a unit employee and the Union ’s president.  On May 4, 2000, she composed an e-mail message on her breaktime and sent it to unit employees from her work station.  The message, entitled “setting it straight,” clarified facts surrounding a union rally on May 1.3  On May 5, the Respondent issued Prozanski a written warning for violating the CSP by using e-mail for “conducting Guild business.”  The warning stated in part:  “Employees who see that e-mail message are likely to assume that it’s OK to use the company’s e-mail for purposes other than company business.  And, of course, that’s not true.”

On August 14 and 18, Prozanski sent two more e-mails to unit employees at their Register-Guard e-mail addresses.  However, she composed and sent these messages from the Union ’s office, off the Respondent’s premises.  The August 14 e-mail asked employees to wear green to support the Union ’s position in negotiations.  The August 18 e-mail asked employees to participate in the Union ’s entry in an upcoming town parade.  The Respondent issued Prozanski another written warning on August 22, stating that Prozanski had violated the CSP by using the Respondent’s communications system for Guild activities.  The warning instructed Prozanski to “stop using the system for dissemination of union information.”

Other than the warnings to Prozanski and a warning to one other employee, Bill Bishop, there is no clear evidence that the CSP was enforced against any other employees.  Managing Editor Dave Baker, Prozanski’s supervisor, testified that he had received numerous nonwork-related e-mails from employees but had never disciplined anyone other than Prozanski and Bishop.4

C.  The Respondent’s Bargaining Proposal to Prohibit
Using the Respondent’s Communications Systems
for “Union Business”

The parties’ collective-bargaining agreement expired on April 30, 1999.  In January 1999, they began negotiating for a successor agreement.  Negotiations continued through the time of the 2001 hearing.

On October 25, 2000, at the end of a bargaining session, the Respondent presented the Union with “counterproposal 26,” which proposed the following contract language:

 

The electronic communications systems are the property of the Employer and are provided for business use only.  They may not be used for union business.

 

There was no discussion of the proposal that day.  The parties met again the next day, but did not discuss counterproposal 26.  On November 15, around the time of their next bargaining session, the Respondent clarified in writing that counterproposal 26 “only prohibits use of the systems for union business” [emphasis in original].  The Respondent stated that its existing CSP “will govern the use of systems in situations ‘other than’ union business.”

On November 16, the Union responded to counterproposal 26 in writing.  The response stated that, on the advice of counsel, “we will not respond to this proposal at this time because it illegally restricts individuals’ rights to concerted activity in the workplace.”  On November 30, the Union filed an unfair labor practice charge alleging that the Respondent violated Section 8(a)(5) by proposing counterproposal 26.  The Region dismissed the charge on March 31, 2001.  There is no evidence that the parties discussed the proposal between the filing and dismissal of the charge.

On April 9, 2001, the Union made a written request for information regarding the scope of counterproposal 26.  The request noted that “the Guild asserted at the bargaining table that the company’s proposal sought an illegal waiver of employee statutory rights and requested that the employer withdraw the proposal.  The company refused.”  The Union then requested “immediate clarification as to the intent behind Company Counterproposal No. 26,” including the types of union-related discussions it would prohibit.  The Union stated:  “Absent clarification from the employer as to a contrary intent, the Guild will assume that its original understanding regarding the intent of Counterproposal No. 26 was and is correct.”

The Respondent provided a written response on April 21.  The response stated in part:  “It is unfortunate that you have decided to create a legal workshop on this issue.  Until your unfair labor practice charge was dismissed you refused to even discuss our proposal.”  The response further stated that, “as a general rule,” the proposal would apply to “all union business” and to all unit employees as well as union officers.  It stated that the Respondent was not asking the union to waive employees’ rights to decertify the Union .  However, the proposal would bar an employee e-mail discussing the merits of a proposed union dues increase.  With regard to other questions raised by the Union , the Respondent stated that it could not “try to prejudge all possible hypothetical acts and circumstances.”  The response also referred to Prozanski’s discipline and stated that counterproposal 26 was intended to “make it clear” that its systems were not to be used for similar communications.

That same day, the parties held a bargaining session at which the Respondent’s intended scope of counterproposal 26 was discussed further.  The Union did not accept or reject any part of the proposal or offer any counterproposal.  Rather, the Union ’s lead negotiator, Lance Robertson, continued to press for additional clarification of the proposal, specifically what the Respondent meant by “union business.”  In response, the Respondent’s negotiator complained that Robertson was not bargaining, but simply “tak[ing] notes for your appeal to the process.”  He also noted the Union’s prior position, that “it might be illegal for [the Union ] to agree with the proposal.”  Robertson told the Respondent that he was “here to bargain a proposal,” but he also stated:  “In order to bargain it, we need to know how it would work.”  The Respondent’s negotiator said that he would take Robertson’s questions under advisement.

After the April 21 session, there is no evidence that the Respondent provided the Union with any further clarification.  On April 24, the Union filed a new 8(a)(5) charge alleging that the Respondent had proposed and “refus[ed] to withdraw” counterproposal 26.  On August 13, 2001, the Region revoked its dismissal of the previous charge.  The parties stipulated that counterproposal 26 has been the Respondent’s position since October 25, 2000.

ii.  discussion

A.  Maintenance of the CSP

1.  Legal framework governing Section 7 communica-
tions by employees in the workplace

The General Counsel contends that the CSP’s prohibition on “non-job-related solicitations” is unlawfully overbroad and violates Section 8(a)(1).  The judge dismissed that allegation, and the majority affirms the dismissal.  We dissent.

The issue in an 8(a)(1) case is whether the employer’s conduct interferes with Section 7 rights.  If so, the employer must demonstrate a legitimate business reason that outweighs the interference.  See, e.g., Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001); Jeannette Corp., 532 F.2d 916, 918 (3d Cir. 1976).

It is intuitively obvious that the workplace is “uniquely appropriate” for Section 7 activity.  NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974).  In cases involving employee communications at work, the Board’s task is to balance the employees’ Section 7 right to communicate with the employer’s right to protect its business interests.  Beth Israel Hospital v. NLRB, 437 U.S. 483, 494 (1978).  Limitations on communication should not be “more restrictive than necessary” to protect the employer’s interests.  Id. at 502–503.

Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), is the seminal case balancing those interests with respect to oral solicitation in the workplace.  The employer in Republic Aviation maintained a rule prohibiting solicitation anywhere on company property and discharged an employee for soliciting for the union during nonworking time.  The Board adopted a presumption that restricting oral solicitation on nonworking time was unlawful, absent special circumstances.  The Supreme Court affirmed the Board’s finding that the employer’s rule and its enforcement violated Section 8(a)(1).  Although the solicitation occurred on the employer’s property, the Court found that an insufficient justification to allow the employer to prohibit it.  Rather, the Court endorsed the Board’s reasoning that “[i]t is not every interference with property rights that is within the Fifth Amendment. . . .   Inconvenience or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining.”  324 U.S. at 802 fn. 8.  Although an employer may make and enforce “reasonable rules” covering the conduct of employees on working time, “time outside working hours . . . is an employee’s time to use as he wishes without unreasonable restraint, although the employee is on company property.”  Id. at 803 fn. 10 (emphasis supplied).  The Court upheld the Board’s presumption that a rule banning solicitation during nonworking time is “an unreasonable impediment to self-organization . . . in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.”  Id. at 803 fn. 10.

Thus, the presumption adopted in Republic Aviation vindicates the right of employees to communicate in the workplace regarding Section 7 matters, subject to the employer’s right to maintain production and discipline.  Although the majority correctly notes that the rule in Republic Aviation itself involved a complete ban on solicitation on the employer’s premises, the Board and courts have long since applied Republic Aviation’s principles to lesser restrictions on employee speech.  See, e.g., Beth Israel, 437 U.S. at 492 (rule prohibiting solicitation and distribution in the hospital’s patient-care and public areas; employer permitted those activities in employee locker rooms and restrooms); Times Publishing Co. , 240 NLRB 1158 (1979) (rule prohibiting solicitation in “public areas” of the building), affd. 605 F.2d 847 (5th Cir. 1979); Bankers Club, Inc., 218 NLRB 22, 27 (1975) (rule banning solicitation in “customer areas” of the respondent’s restaurant).

The Supreme Court struck quite a different balance in cases involving nonemployees seeking to communicate with employees on the employer’s premises.  In a case involving distribution of union literature on an employer’s property by nonemployee union organizers, the Court emphasized that “[a]ccommodation” between Section 7 rights and employer property rights “must be obtained with as little destruction of one as is consistent with the maintenance of the other.”  NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956).  The Court held that an employer “may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution.”  Id. (emphasis supplied).  Distinguishing Republic Aviation on the basis that it involved communications by employees, the Court emphasized that “[t]he distinction [between employees and nonemployees] is one of substance.  No restriction may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.  But no such obligation is owed nonemployee organizers.”  Id. at 113; see also Hudgens v. NLRB, 424 U.S. 507, 521 fn. 10 (1976) (“A wholly different balance [is] struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved.”).

In short, the Board and courts have long protected employees’ rights to engage in Section 7 communications at the workplace, even though the employees are on the employer’s “property.”

2.  The Respondent’s prohibition on all “non-job-
related solicitations” violated Section 8(a)(1)

Applying the foregoing principles, the General Counsel contends that employer rules restricting employee e-mail use must be evaluated under Republic Aviation, and that broad bans on employee e-mail use should be presumptively unlawful.  The General Counsel emphasizes that e-mail has become the “natural gathering place” for employees to communicate in the workplace,5 and that e-mail sent and received on computers issued to employees for their use is not analogous to employer “equipment” such as bulletin boards, photocopiers, and public address systems.

The majority, however, finds the Republic Aviation framework inapplicable.  Emphasizing the employer’s “property” interest in its e-mail system, the majority reasons that, absent discriminatory treatment, employees have no Section 7 right to use employer personal property such as bulletin boards, television sets, and telephones.  According to the majority, Republic Aviation ensures only that employees will not be “entirely deprived” of the ability to engage in any Section 7 communications in the workplace, but otherwise does not entitle employees to use their employer’s equipment.  Here, the majority asserts, the employees had other means of communication available.

We disagree.  Indeed, we find that the General Counsel’s approach is manifestly better suited to the role of e-mail in the modern workplace.  “The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.”  NLRB v. J. Weingarten, 420 U.S. 251, 266 (1975).  The majority’s approach is flawed on several levels.  First, it fails to recognize that e-mail has revolutionized business and personal communications, and that cases involving static pieces of “equipment” such as telephones and bulletin boards are easily distinguishable.  Second, the majority’s approach is based on an erroneous assumption that the Respondent’s ownership of the computers gives it a “property” interest that is sufficient on its own to exclude Section 7 e-mails.  Third, the majority’s assertion that Republic Aviation created a “reasonable alternative means” test, even regarding employees who are already rightfully on the employer’s property, is untenable.6

E-mail has dramatically changed, and is continuing to change, how people communicate at work.  According to a 2004 survey of 840 U.S. businesses, more than 81 percent of employees spent at least an hour on e-mail on a typical workday; about 10 percent spent more than 4 hours.7  About 86 percent of employees send and receive at least some nonbusiness-related e-mail at work.8  Those percentages, no doubt, are continuing to increase.  “Even employees who report to fixed work locations every day have seen their work environments evolve to a point where they interact to an ever-increasing degree electronically, rather than face-to-face.  The discussion by the water cooler is in the process of being replaced by the discussion via e-mail.”9

Given the unique characteristics of e-mail and the way it has transformed modern communication, it is simply absurd to find an e-mail system analogous to a telephone, a television set, a bulletin board, or a slip of scrap paper.  Nevertheless, that is what the majority does, relying on the Board’s statements in prior cases that an employer may place nondiscriminatory restrictions on the nonwork-related use of such equipment and property.10  None of those “equipment” cases, however, involved sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges.  Rather, they involved far more limited and finite resources.  For example, if a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced.  See, e.g., Sprint/United Management Co., 326 NLRB 397, 399 (1998) (employer “may have a legitimate interest in ensuring that its postings can easily be seen and read and that they are not obscured or diminished in prominence by other notices posted by employees”).  If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.  Indeed, in Churchill’s Supermarkets, 285 NLRB 138, 147 (1987), enfd. 857 F.2d 1471 (6th Cir. 1988), cert. denied 490 U.S. 1046 (1989), cited by the majority, the judge noted that the employer’s “overriding consideration has always been that an employee should not tie up the phone lines” for personal use.11  Here, in contrast, the Respondent concedes that text e-mails impose no additional cost on the Respondent.  At the time of the hearing in 2000, the Respondent’s system was receiving as many as 4000 e-mail messages per day.  One or more employees using the e-mail system would not preclude or interfere with simultaneous use by management or other employees.  Furthermore, unlike a telephone, e-mail’s versatility permits the sender of a message to reach a single recipient or multiple recipients simultaneously; allows the recipients to glimpse the subject matter of the message before deciding whether to read the message, delete it without reading it, or save it for later; and, once opened, allows the recipient to reply to the sender and/or other recipients, to engage in a real-time “conversation” with them, to forward the message to others, or to do nothing.  Neither the telephone nor any other form of “equipment” addressed in the Board’s prior cases shares these multidimensional characteristics.

The majority relies on the employer’s ownership of the computer system as furnishing a “basic property right” to regulate e-mail use.  But ownership, simpliciter, does not supply the Respondent with an absolute right to exclude Section 7 e-mails.  The Respondent has already provided the computers and the e-mail capability to employees for regular and routine use to communicate at work.12  Thus, the employees are not only “rightfully” on the Respondent’s real property, the building itself; they are rightfully on (using) the computer system.  See Hudgens, supra at 521 (when activity is “carried on by employees already rightfully on the employer’s property . . . the employer’s management interests rather than his property interests” are involved).  Moreover, an e-mail system and the messages traveling through it are not simply “equipment”; the Respondent does not own cyberspace.  See Reno v. ACLU, 521 U.S. 844, 850 (1997) (e-mail, the “World Wide Web,” and mail listing services “constitute a unique medium—known to its users as ‘cyberspace’—located in no particular geographic location but available to anyone, anywhere in the world, with access to the Internet.”).

As the discussion above demonstrates, the existence of a “property right” does not end the inquiry—rather, it only begins it.  The Respondent has not demonstrated how allowing employee e-mails on Section 7 matters interferes with its alleged property interest.  To repeat, the Respondent already allows the employees to use the computers and e-mail system for work—and, for that matter, for personal messages.  Additional text e-mails do not impose any additional costs on the Respondent.  And e-mail systems, unlike older communications media, accommodate multiple, simultaneous users.

Common law involving computer “trespass,” on which the Respondent relies, harms its case rather than helping it.  Trespass cases illustrate that the mere use of a computer system to send e-mails does not interfere with the owner’s property interest, absent some showing of harm to the system.  The Restatement (Second) of Torts states in part: “The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel.  In order that an actor who interferes with another’s chattel may be liable, his conduct must affect some other and more important interest of the possessor.”  See Section 218, cmt. e.  Where courts have allowed tort actions to go forward based on trespass to a computer system, they have relied on specific allegations of harm.13  Courts have dismissed claims where there was no such evidence.14

As stated, the majority also reasons, based on the particular facts of Republic Aviation, that the Respondent need not yield its “property interests” here, because employees have alternative means to communicate in the workplace, such as oral in-person communication.  In 2007, however, that train has already left the station: that is not how the courts and the Board have applied Republic Aviation, and the availability of alternative means is not relevant when dealing with employee-to-employee communications.  See, e.g., Babcock & Wilcox, supra at 112–113; Helton v. NLRB, 656 F.2d 883, 896–897 (D.C. Cir. 1981) (collecting cases).  The alternative-means test applies only to activity by nonemployees on the employer’s property.  See Babcock & Wilcox, supra at 112; Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).  The distinction between employee and nonemployee activity is “one of substance.”  Babcock & Wilcox, supra at 113.  If the absence of alternative means to communicate in the workplace were a prerequisite to employees’ right to engage in Section 7 activity on employer property, presumably an employer could ban oral solicitation by employees in “work areas,” or even everywhere except an employee breakroom, without any showing of special circumstances, because the employer would not have “entirely deprived” employees of the right to communicate on the premises.  Of course, neither the Board nor the Supreme Court has ever placed such limits on Section 7 communication.15

For all of the foregoing reasons, we reject the majority’s conclusion that e-mail is just another piece of employer “equipment.”  Where, as here, the employer has given employees access to e-mail in the workplace for their regular use, we would find that banning all nonwork-related “solicitations” is presumptively unlawful absent special circumstances.  This presumption recognizes employees’ rights to discuss Section 7 matters using a resource that has been made available to them for routine workplace communication.  Because the presumption is rebuttable, it also recognizes that an employer may have interests that justify a ban.  For example, an employer might show that its server capacity is so limited that even text e-mails would interfere with its operation.16  An employer might also justify more limited restrictions on nonwork-related e-mails—such as prohibiting large attachments or audio/video segments—by demonstrating that such messages would interfere with the efficient functioning of the system.  In addition, rules limiting nonwork-related e-mails to nonworking time would be presumptively lawful, just as with oral solicitations.17

Here, the Respondent has shown no special circumstances for its ban on “non-job-related solicitations,” which on its face would prohibit even solicitations on nonworking time, without regard to the size of the message or its attachments, or whether the message would actually interfere with production or discipline.  Accordingly, we would reverse the judge and find that the Respondent violated Section 8(a)(1) by maintaining the portion of the CSP that prohibits employees from using e-mail for “non-job-related solicitations.”

B.  The Respondent’s Enforcement of the CSP

Even assuming the maintenance of the CSP were lawful, the judge correctly found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing it.  The majority does not dispute that this result was correct under Board precedent.  Instead, the majority overrules that precedent and announces a new, more limited conception of “discrimination,” based on two decisions from the Seventh Circuit.18

As explained below, we respectfully but emphatically disagree with the Seventh Circuit’s analysis.19  But even assuming we did not, the majority’s application of its new test is flawed.  Accordingly, we would affirm the judge’s conclusion that the Respondent violated Section 8(a)(1) by discriminatorily enforcing the CSP to all three of Prozanski’s union-related e-mails.

1.  The Respondent violated Section 8(a)(1)
under longstanding precedent

Section 7 grants employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .”  An employer violates Section 8(a)(1) by “interfer[ing] with, restrain[ing], or coerc[ing] employees” in the exercise of that right.  In particular, and in accord with the decades-old understanding of discrimination within the meaning of the National Labor Relations Act, the Board has long held that an employer violates that section by allowing employees to use an employer’s equipment or other resources for nonwork-related purposes while prohibiting Section 7-related uses.  See, e.g., Vons Grocery Co., 320 NLRB 53, 55 (1995) (bulletin board); Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983) (bulletin board); Union Carbide, supra at 980 (telephone).  As recently as 2005, the Board applied this principle to employee use of e-mail.  See Richmond Times-Dispatch, 346 NLRB No. 11, slip op. at 3 (2005) (employer violated Sec. 8(a)(1) by permitting a “wide variety of e-mail messages unrelated to the Respondent’s business” but prohibiting union-related messages), enfd. 225 Fed. Appx. 144 (4th Cir. 2007), cert. denied 128 S.Ct. 492 (2007); see also E. I. du Pont de Nemours & Co., 311 NLRB 893, 919 (1993) (employer violated Sec. 8(a)(1) by permitting the “routine use” of e-mail by employees “to distribute a wide variety of material that has little if any relevance to the Company’s business,” but prohibiting the use of e-mail to distribute union literature).

Here, the record makes plain that the Respondent allowed employees to use e-mail for a broad range of nonwork-related messages, including e-mails requesting employees to participate in nonwork-related events.  For example, employees and supervisors used e-mail to circulate jokes, baby announcements, and party invitations; to offer sports tickets; to seek a dog walker; to organize a poker group; and to make lunch plans.  Yet, the Respondent enforced the CSP against Prozanski for sending three union-related messages.  This is a clear 8(a)(1) violation under longstanding precedent.

2.  The majority’s standard

The majority defines “unlawful discrimination” as “disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.”  According to the majority, the employer “may draw a line between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature . . . and solicitations for the commercial sale of a product . . ., between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.”  Applying that standard to the record here, the majority finds that the Respondent permitted nonwork-related e-mails other than solicitations, but had never permitted solicitations to support any group or organization.  Therefore, the majority concludes, the Respondent discriminated along Section 7 lines in applying the CSP to Prozanski’s May 4 e-mail about the union rally (which was not a solicitation), but did not discriminate in applying the CSP to Prozanski’s August 14 and 18 e-mails (which the majority finds were solicitations).

a.  The Fleming and Guardian decisions

The majority decision is based on two Seventh Circuit cases:  Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001), and Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994).  In Guardian, the Board found an 8(a)(1) violation where the employer allowed personal “swap and shop” postings advertising items for sale, but denied permission for union or other group postings, including those by the Red Cross and an employee credit union.   In Fleming, the Board held that the employer violated Section 8(a)(1) by removing union literature from a bulletin board.  Although the employee handbook stated that the bulletin boards were “for company business purposes only,” the employer had allowed “a wide range of personal postings,” including wedding announcements, birthday cards, and notices selling personal property such as cars and a television.  There was no evidence that the employer had allowed postings for any outside clubs or organizations.  336 NLRB at 193–194.  According to the credited testimony, an employee had asked permission to post a church announcement, which the employer denied.  Id. at 202–203.  Thus, the employer had affirmatively excluded at least one “organizational” posting other than union postings.

The Seventh Circuit denied enforcement in both cases.  In Guardian, the court stated that discrimination “is a form of inequality” and that a person claiming discrimination “must identify another case that has been treated differently and explain why that case is ‘the same’ in the respects the law deems relevant or permissible as grounds of action.”  See id. at 319.  Reasoning that “labor law is only one of many bodies implementing an antidiscrimination principle,” id., the court posed several hypotheticals about whether other statutes or constitutional provisions, such as the Age Discrimination in Employment Act (ADEA) or the First Amendment, would be violated by allowing certain personal notices to be posted in the workplace, but not allowing postings by political groups or senior citizens’ groups.  The court found that such practices would not be discriminatory.  The court also relied on Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 (1983), in which the Supreme Court held that a school system did not violate the First Amendment by allowing the collective-bargaining representative and certain other groups, but not a rival union, to use the school’s internal mailboxes.  Turning back to the facts of the case before it, the Guardian court noted that the employer had never allowed employees to post notices of organizational meetings.  The court acknowledged that a practice of tolerating notices for anything but unions would be “antiunion discrimination by anyone’s definition,” id. at 321, but “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.”  Id. at 320.  Accordingly, the court found that the employer’s refusal to post union notices was not unlawful.  Id. at 322.

In Fleming, the court reaffirmed Guardian.  349 F.3d at 975.  The court noted that Fleming did not enforce its written “company use only” policy, but that “Fleming consistently excluded any posting of group or organizational notices.”  Id. at 974.  Therefore, the court reasoned, “Fleming’s actual practice of permitting personal postings, but not organizational ones, was consistently enforced.”  Id. at 975.  The court then held:  “Just as we have recognized for-sale notices as a category of notices distinct from organizational notices (which would include union postings), we can now add the category of personal postings.”  Id. 20

b.  The Seventh Circuit’s analysis is inappropriate
in the context of the NLRA

In analyzing whether union postings were “equal to” “swap and shop” notices, the Guardian court relied on case law and hypotheticals involving the First and Fourteenth Amendments and ADEA.  See 49 F.3d at 320. Thus, the court implicitly assumed that the “discriminatory” enforcement of a rule in violation of Section 8(a)(1) is analogous to “discrimination” in other contexts.  Cf. Rebecca Hanner White, Modern Discrimination Theory and the National Labor Relations Act, 39 Wm. & Mary L. Rev. 99, 115 (Oct. 1997) (the Guardian court “mistakenly . . . imported Title VII’s disparate treatment approach into Section 8(a)(1)”).

The hypotheticals posed by the court, however, are not analogous to an 8(a)(1) analysis.  Unlike antidiscrimination statutes, the Act does not merely give employees the right to be free from discrimination based on union activity.  It gives them the affirmative right to engage in concerted group action for mutual benefit and protection.  Nor are employees’ Section 7 rights dependent on a “public forum” analysis, as in Perry.  Rather, in evaluating whether an employer’s conduct violates Section 8(a)(1), the Board examines whether the conduct reasonably tended to interfere with those affirmative Section 7 rights.  If so, the burden is on the employer to demonstrate a legitimate and substantial business justification for its conduct.  Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001); Jeannette Corp., 532 F.2d 916, 918 (3d Cir. 1976).  Motive is not part of the analysis.  Section 8(a)(3) separately prohibits discrimination with the motive to encourage or discourage union support.21

Therefore, by focusing on what types of activities are “equal” to Section 7 activities, the majority misses the point.  In 8(a)(1) cases, the essence of the violation is not “discrimination.”  Rather, it is interference with employees’ Section 7 rights.  The Board’s existing precedent on discriminatory enforcement—that an employer violates Section 8(a)(1) by allowing nonwork-related uses of its equipment while prohibiting Section 7 uses—is merely one application of Section 8(a)(1)’s core principles: that employees have a right to engage in Section 7 activity, and that interference with that right is unlawful unless the employer shows a business justification that outweighs the infringement.  Discrimination, when it is present, is relevant simply because it weakens or exposes as pretextual the employer’s business justification.22

Contrary to the majority’s contention, this principle is not at odds with NLRB v. Steelworkers (Nutone), 357 U.S. 357 (1958).  In that case, the Court addressed the “very narrow and almost abstract question” of whether an employer violates the Act by enforcing a facially valid no-solicitation rule against employees when the employer has engaged in antiunion solicitation.  Id. at 362.  Thus, the case involved the employer’s own communications—through its supervisors—in a campaign against the union.  In declining to adopt a per se rule that an employer may never enforce a no-solicitation rule if the employer itself is engaging in antiunion solicitation, the Court noted that the employer had made exceptions to its no-solicitation rule in the past for charitable solicitation, and that there was no evidence that the union or employees had requested such an exception for their own activities.  The Court then found no evidence that the rule diminished the ability of the unions to carry their message to the employees.  Having previously noted that an employer’s right to engage in noncoercive antiunion solicitation “is protected by the so-called ‘employer free speech’ provision of Section 8(c) of the Act,”23 the Court reasoned that where the union’s opportunities for reaching the employees with its pro-union message were “at least as great as the employer’s ability to promote the legally authorized expression of his antiunion views, there is no basis for invalidating [the employer’s] ‘otherwise valid’ rules.”  Id. at 364 (emphasis supplied).  Thus, Nutone reflects the need to consider an employer’s free speech right to express its views on unionization—a consideration not applicable when determining whether an employer has violated Section 8(a)(1) by allowing employees to communicate on some nonwork-related matters, but not on Section 7 matters.  The Nutone Court never discussed the latter issue, which was not before it.  Thus, the majority grossly overstates the scope of Nutone by contending that the Court “rejected” the general notion that disparate treatment of two groups “not similarly situated” undermines the employer’s business justification and therefore violates Section 8(a)(1).  No such discussion appears in the Court’s decision, and Nutone has little, if any, relevance here.24

Rather, under the basic Section 8(a)(1) principles discussed above, if an employer wants to “draw a line” between permitted and prohibited e-mails—or, for that matter, between permitted and prohibited bulletin board postings, telephone calls, or other uses of employer equipment or media—based on whether the employees are urging support for “groups” or “organizations,” the employer must show some legitimate business reason for drawing that particular line, and that business justification must outweigh the interference with Section 7 rights.  Otherwise, the employer’s rule is completely antithetical to Section 7’s protection of concerted activity.25  The Seventh Circuit and majority fail to engage in this analysis.  In any event, the Respondent has not offered any such justification here.

Taken to its logical extreme, the majority’s holding that an employer need only avoid “drawing a line on a Section 7 basis” is a license to permit almost anything but union communications, so long as the employer does not expressly say so.26  It is no answer to say that a rule prohibiting all noncharitable solicitations or all solicitations for a group or organizations is not discriminatory because it would also prohibit selling Avon or Amway products.  The Act does not protect against interference with those activities; it does protect against interference with Section 7 activity.  Accordingly, we would adhere to precedent, which properly reflects that principle.

3.  The Respondent violated Section 8(a)(1) even
under the majority’s standard

In any event, even under the majority’s standard, the Respondent’s enforcement of the CSP was unlawful with respect to all three of Prozanski’s e-mails:  the May 4 e-mail “setting the record straight” about the union rally, the August 14 e-mail urging employees to wear green to support the Union, and the August 18 e-mail urging participation in the Union’s entry in a town parade.

First, assuming that Prozanski’s August 14 and 18 e-mails were “solicitations” and that the Respondent could lawfully draw a line between “solicitations to support any group or organization” and other messages, as the majority contends, that is not the line the CSP drew.  By its terms, the CSP barred all “non-job-related solicitations,” whether or not they urge support for a “group or organization.”  Yet, the Respondent allowed other personal “solicitations”—which violated the terms of the CSP—while disallowing Prozanski’s union-related “solicitations.”

Second, even the Seventh Circuit recognized that if an employer allowed notices for anything except unions, “that is anti-union discrimination by anyone’s definition.”  Guardian, supra at 321.  In Fleming, the employer had denied an employee’s request to post a church announcement.  336 NLRB at 202–203.  In Guardian, the employer routinely excluded all “organizational” requests.  Here, there is no clear evidence that the Respondent ever enforced the CSP against anything other than union-related messages.  That is unlawful discrimination “by anyone’s definition.”  Guardian, supra at 321.

B.  The Respondent’s Discipline of Prozanski
Violated Section 8(a)(3) and (1)

Applying Wright Line,27 the judge found that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings to Prozanski on May 5 and August 22 for sending union-related e-mails.  The majority, finding Wright Line inapplicable here, affirms the violation as to the May 5 discipline, but reverses as to the August 22 warning.

We agree with the majority that a Wright Line analysis is inappropriate.  However, for the reasons stated below, we would find both warnings unlawful.

First, we would find that the CSP’s prohibition on using e-mail for any “non-job-related solicitations” was unlawful on its face.  Therefore, the discipline of Prozanski on May 5 and August 22 pursuant to that policy was unlawful.  Saia Motor Freight Line, 333 NLRB 784, 785 (2001) (discipline pursuant to overbroad no-solicitation/no-distribution rule violated Sec. 8(a)(3) and (1) without consideration of Wright Line).

Alternatively, even assuming the policy was lawful, we agree with the majority that it was discriminatorily enforced with respect to the May 4 e-mail.  Therefore, the Respondent’s May 5 discipline of Prozanski for sending that e-mail violated Section 8(a)(3) and (1).  As explained above, we would also find that the CSP was discriminatorily enforced with respect to the August 14 and 18 e-mails.  Accordingly, the second, August 22 warning for sending those e-mails also violated Section 8(a)(3) and (1).  See St. Joseph’s Hospital, 337 NLRB 94, 95 (2002) (warning for displaying union-related screen saver violated Sec. 8(a)(3) where employer allowed other nonwork-related screen savers), enfd. 55 Fed. Appx. 902 (11th Cir. 2002).

D.  The Respondent’s Insistence on an Illegal
Bargaining Proposal

The judge found that the Respondent violated Section 8(a)(5) and (1) by insisting on the proposal known as counterproposal 26, which stated that the Respondent’s electronic communication systems could not be used for “union business.”  The majority reverses the judge, finding that the evidence fails to show “insistence” on the proposal.  The majority finds it unnecessary to pass on whether the proposal was unlawful.  We dissent.

First, we agree with the judge that counterproposal 26 was an illegal codification of the Respondent’s discriminatory practice of allowing e-mail use for a broad range of nonwork-related messages, but not for union-related messages.  Second, for the reasons stated below, we disagree with the majority’s finding of no “insistence.”28

A party may not continue to insist on a nonmandatory proposal in the face of the other party’s “clear and express refusal” to bargain over it.  Laredo Packing Co., 254 NLRB 1, 19 (1981).  Here, the Union responded to the proposal by stating that it would not respond, because the proposal illegally restricted Section 7 rights.  The Union also filed an 8(a)(5) charge.  After that charge was dismissed, the Union sought clarification regarding the scope of the proposal, but still expressed concern that it was illegal.  The majority notes that at an April 21 bargaining session, the Union ’s lead negotiator stated that “I’m here to bargain a proposal.”  However, he also stated at various points during the discussion that “it makes it very difficult to bargain this issue if we don’t know what would be allowed and what wouldn’t be allowed. . . .  In order to bargain it, we need to know how it would work.”  Indeed, at the April 21 session, the Respondent accused the Union of failing to bargain over the proposal and instead simply “taking notes” to appeal the dismissal of the first 8(a)(5) charge.

The evidence as a whole, including bargaining notes from the April 21 session, indicates that the parties had not begun substantive bargaining over the proposal; rather, the Union was still seeking clarification of what the proposal meant.  Furthermore, on April 24, 2001, the Union filed a new 8(a)(5) charge alleging that the Respondent had proposed and “refused to withdraw” counterproposal 26.  If the Respondent had any doubt about the Union’s position after the April 21 bargaining session, the filing and service of the charge put it on notice that the Union did not want to discuss counterproposal 26.  Nevertheless, the Respondent still did not withdraw the proposal.

Under the above circumstances, we find that the Union communicated a “clear and express refusal” to bargain over counterproposal 26, and that the Respondent nevertheless continued to insist on the proposal.  Accordingly, we would adopt the 8(a)(5) violation.

iii.  conclusion

The majority decision, particularly those portions addressing the maintenance and enforcement of the CSP, does damage to employee Section 7 rights on multiple levels.  First, the majority fails to heed the Supreme Court’s instruction that the Board must “adapt the Act to changing patterns of industrial life”29—here, the explosion of electronic mail as a primary means of workplace communication.  Second, the majority erroneously treats the employer’s asserted “property interest” in e-mail—a questionable interest here, in any event—as paramount, and fails to give due consideration to employee rights and the appropriate balancing of the parties’ legitimate interests.  Third, the majority blurs the “distinction of substance” between the rights of employees and those of nonemployees.30  Finally, the majority discards the Board’s longstanding test for discriminatory enforcement of a rule, replacing it with a standard that allows the employer virtually unlimited discretion to exclude Section 7 communications, so long as the employer couches its rule in facially neutral terms.  Accordingly, we dissent.

Dated, Washington , D.C.    December 16, 2007

 

______________________________________

Wilma B. Liebman,                                   Member

 

______________________________________

Dennis P. Walsh,                                     Member

 

              National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

 

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

 

We will not discriminatorily prohibit employees from using our electronic communications system to send union-related messages.

We will not maintain an overly broad rule prohibiting employees from wearing or displaying union insignia while working with customers.

We will not issue written warnings to, or otherwise discriminate against, any employee for supporting the Eugene Newspaper Guild, CWA Local 37194 or any other labor organization.

We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above.

We will rescind the rule prohibiting circulation department employees from wearing or displaying union insignia while working with customers.

We will, within 14 days from the date of the Board’s  Order, rescind the unlawful warning issued to Suzi Prozanski on May 5, 2000, remove from our files any reference to the unlawful warning, and within 3 days thereafter notify Prozanski in writing that this has been done and that the warning will not be used against her in any way.

 

The Guard Publishing Company d/b/a The Register-Guard

 

Jill Wrigley, Esq., for the Charging Party.

L. Michael Zinser, Esq., of Nashville , Tennessee , for the Respondent.

DECISION

Statement of the Case

John J. McCarrick, Administrative Law Judge.  This case was tried in Eugene, Oregon, on November 14–16, 2001, upon the General Counsel’s second consolidated complaint (complaint) alleging that The Guard Publishing Company d/b/a The Register-Guard (Respondent) violated Section 8(a)(1), (3), and (5) of the Act by maintaining, promulgating and enforcing an overly broad no-solicitation policy, by promulgating and maintaining an insignia policy prohibiting display of union insignia or signs, by discriminatorily enforcing its no-solicitation policy by warning Suzi Prozanski (Prozanski)[1] on May 5 and August 22, 2000,[2] and by proposing an illegal subject during collective bargaining with Eugene Newspaper Guild, CWA Local 37194 (Union).  Respondent filed a timely answer to the complaint and denied any wrongdoing.  On the entire record,[3] including my observation of the demeanor of the witnesses, and after considering the briefs filed by the parties, I make the following

Findings of Fact

i.  jurisdiction

The Respondent, an Oregon corporation, publishes a newspaper at its Eugene , Oregon facility, where it annually had gross sales of goods and services valued in excess of $200,000 and held membership in or subscribed to interstate news services, published nationally syndicated features and advertised nationally sold products.  The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii.  alleged unfair labor practices

A.  The Issues

1.  Does Respondent’s communications policy constitute an overly broad no-solicitation rule in violation of Section 8(a)(1) of the Act?

2.  Has Respondent enforced its communications policy in a discriminatory manner in violation of Section 8(a)(1) of the Act?

3.  Has Respondent implemented and maintained an overly broad rule prohibiting the wearing of union insignia or the display of signs soliciting support for the union in violation of Section 8(a)(1) of the Act?

4.  Did Respondent’s May 5 and August 22 warnings to Prozanski for violating Respondent’s communications policy violate Section 8(a)(1) and (3) of the Act?

5.  Did Respondent’s October 25 counterproposal 26 prohibiting use of Respondent’s e-mail systems for union business, constitute an illegal subject of bargaining which violated Section 8(a)(5) of the Act?

B.  The Facts

1.  Background

Respondent publishes The Register-Guard, a daily newspaper with circulation in the Eugene , Oregon area.  The Union represents about 150 of Respondent’s employees in the editorial, circulation, business office, display and classified advertising, human relations, promotion and information systems departments.  These departments include, inter alia, reporters, photographers, copy editors, secretaries, clerks, advertising department employees and district managers in the circulation department.  The last collective-bargaining agreement between Respondent and the Union was for the period October 16, 1996 to April 30, 1999.  Respondent and the Union have been negotiating for a new agreement but have not yet entered into a successor contract.

Respondent began installing a computer and information system at its Eugene facility in March 1996 and had fully implemented the system, with internet and electronic mail (e-mail) capability in the summer of 1997.  All of Respondent’s employees with the exception of 15 district managers have access to e-mail.  While most employees have their own computer terminal, a few employees, such as the 12 outside salespersons, share a terminal and have e-mail access.

On October 4, 1996, Respondent promulgated a written Company communications policy that applies to the use of Respondent’s communications systems including telephones, message machines, computers, fax machines and photocopy machines.  Under the heading “general guidelines” the policy provides, “Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”  The general guidelines further state that “Improper use of Company communication systems will result in discipline, up to and including termination.”  The initial draft of the communications policy was issued on September 4, 1996.  On September 12, 1996, the Union requested bargaining over the use of the electronic communications system. However, there is no evidence that the parties executed a written agreement reflecting an accord regarding the communications policy.

2.  May 5 and August 22 warnings to Prozanski

Respondent has employed Prozanski for about 17 years.  She currently works as a copy editor in the newsroom features department.  Prozanski is a member of the Union and has served as union president since January 2000.  In her capacity as copy editor, Prozanski has her own desk and computer with internet and e-mail functions.  Prozanski uses e-mail for both work and nonwork purposes.  In her work Prozanski uses e-mail to make story lists, compile photographs, review stories and to send memos to coworkers regarding work topics.  She also sends and receives e-mails on a regular basis for nonwork purposes.  For example, Prozanski sends and receives e-mail about union business or to advise fellow workers she is going on a break.

On May 4, Prozanski, in her capacity as union president, sent e-mail from her computer at work to about 50 coworkers at their work e-mail addresses.  The e-mail dealt with a rally that took place on May 1.  Prozanski told Respondent’s managing editor, Dave Baker, she was going to send the e-mail and he replied, “OK, I understand.”  About 5 minutes later, Baker returned and told Prozanski she should not send the e-mail.  On May 5, Baker issued Prozanski a written warning for violating the Respondent’s communications policy for sending a union-related e-mail on May 4.

On August 14, Prozanski sent e-mail from the union office to Respondent’s employees at their work e-mail addresses advising them to wear green in support of union efforts to gain a raise for employees and a contract.  On August 18, Prozanski sent another e-mail from the union office to Respondent’s employees at their work e-mail addresses urging them to participate in the Union’s entry in the Eugene celebration parade.  On August 22, Cynthia Walden, Respondent’s director of human relations, issued a written warning to Prozanski for sending the August 14 and 18 Guild-related e-mails to employee workstations in violation of Respondent’s communications policy.

Respondent’s employees testified without contradiction that both they and their managers used e-mail at work for non-business purposes without reprimand.  In addition to Prozanski, Respondent’s reporters Lance Robertson (Robertson), Randi Bjornstad (Bjornstad), William Bishop (Bishop), and Kimber Williams (Williams) sent and received e-mail at work from employees and managers regarding parties, jokes, breaks, community events, sporting events, births, meeting for lunch, and poker games.  Respondent’s general manager, Dave Baker (Baker) admitted that he has received personal e-mail from other employees and has not disciplined them.  Numerous e-mails were offered into evidence that reflect employees, supervisors and managers have sent and received personal e-mail at work without discipline.  The following e-mails were sent by managers or supervisors:  On March 18, city editor, Margaret Haberman, e-mailed an unspecified group of employees that she was throwing a party in honor of her 40th birthday.  On September 1, assistant city editor, Scott McFetridge, sent e-mail to over 20 employees announcing a going away party.  On March 30, assistant city editor, Lloyd Paseman, e-mailed employees, managers and supervisors seeking someone to walk a reporter’s dog.  On March 14, assistant news editor, Paul Yarbrough, sent e-mail to employees and supervisors that he had basketball tickets available.  On November 8, deputy managing editor, Carl Davaz, sent e-mail to all employees listing among other business related items, a birth announcement.  On July 28, graphics editor, R. Romig, announced a party to numerous employees by e-mail.  On October 8 and 10, managing editor, Baker, sent e-mail to all employees announcing the United Way Campaign and soliciting assistance from employees in the campaign.

3.  December 12—Kangail’s armband and placard

Ronald Kangail (Kangail) worked for Respondent as a district manager since 1977.  He is a member of the Union and is part of the bargaining unit.  As a district manager Kangail deals with newspaper carriers, subscribers and businesses in his district and also in his office. While in the field, Kangail drives his own vehicle. Neither Kangail nor any of the other district managers are required to wear a uniform when dealing with the public.  In his office at Respondent’s facility, Kangail has union material displayed that he has not been required to remove.

In November Kangail began to wear a green armband to show support for the Union and to demonstrate the Union did not have a contract with Respondent.  At the same time he displayed a green placard in the window of his vehicle while working in the field.  The placard was 8-1/2 by 11 inches in size and stated:

 

WORKERS AT THE

 

REGISTER-GUARD

 

DESERVE A FAIR CONTRACT!

 

SUPPORT THE

 

EUGENE NEWSPAPER GUILD.

 

Want to help?  Call 343-8625.

 

On December 12, Kangails’ supervisor, Zone Manager Steve Hunt (Hunt) told Kangail to remove the armband from his arm and the placard from his car when he was in the field.  Kangail complied with the directive.  Other district managers wore insignia while in the field including hats with the logos of football teams and the Marine Corps and shirts displaying college names.  Respondent has no written policy or rules concerning the display of insignia or signs at work.  There was contradictory testimony from Advertising Director Michael Raz (Raz) and Circulation Director Charles Downing (Downing) concerning exactly what Respondent’s policy was concerning wearing insignia when dealing with the public.  Raz said the policy was that, “. . . employees could not wear or exhibit indicia that are controversial in nature, or partisan or political, or in—otherwise represent the company in a negative context.”  Downing testified that the policy was, “That while in the execution of their duties in the field, they’re not to wear anything that is not appropriate to the business.”

4.  October 26—Respondent proposes contract language
prohibiting unit employees from using Respondent’s
electronics communications systems for union matters

On about October 25, during the course of bargaining for a new collective-bargaining agreement, Respondent proposed the following contract language:

 

Company Counterproposal No. 26

October 25, 2000

 

Article XVII

 

Section 8.  Electronic Communications Systems—The electronic communications systems are the property of the Employer and are provided for business use only.  They may not be used for union business.

 

On November 15, Respondent clarified its position with respect to Company counterproposal 26.  In a statement of position Respondent reaffirmed that it's “contract proposal only prohibits use of the systems for union business.”  The position statement added, “Attached to this statement of position is the Company’s current Communication’s [sic] Policy.  It is our intention that this attached policy will govern the use of systems in situations ‘other than’ union business.”  On November 16, the Union responded that it would not reply to Company counterproposal 26 since it illegally restricted employees’ rights to concerted activity in the workplace.  Two weeks later the Union filed a charge in Case 36–CA–8789 on November 30, 2001, alleging that Respondent violated Section 8(a)(5) of the Act by making Company counterproposal 26.  The Region dismissed the charge on March 30, 2001, and the Union filed an appeal to the General Counsel.  On August 13, 2001, the Region revoked the dismissed charge in Case 36–CA–8789.  Meanwhile the Union asked Respondent for further clarification of Company counterproposal 26.  In a letter dated April 9, 2001, the Union asked Respondent to address four questions.  The letter asks in pertinent part:

 

1.  Does the e-mail ban apply to bargaining unit members who are discussing “union business” or solely to elected officers and representatives of the Guild?

2.  Does “union business” include the expression of ideas and opinions by bargaining unit members regarding the Guild in its representative role?  Would it ban employee use of e-mail to critique the course of ongoing contract negotiations or the terms of the collective bargaining agreement?  To discuss the Guild’s position in bargaining?  To discuss the Guild’s handling of employee grievances?  To discuss the status of an unfair labor practice charge or an arbitration matter being pursued by the Guild on behalf of the bargaining unit?

3.  Does the e-mail ban cover workplace discussion by co-workers of candidates for Guild office?  The expression of employee opinion to co-workers on the quality of representation being offered by the Guild?  Could a Register-Guard worker properly communicate by company e-mail to a co-worker criticism or opinion regarding Guild action as bargaining representative of the actions of its elected officers?

4.  Could a Register-Guard employee use the company e-mail to discuss the merits of a proposed Guild dues increase?

 

Respondent replied in writing on April 21, 2001.  This response stated in pertinent part:

 

We will now attempt to answer your questions in the order asked:

1.  The proposal applies to all employee[s] covered by the contract as well as officers and representatives.

2.  As a general rule the proposal will apply to all union business.  We are not going to, in advance, try to pre-judge all possible hypothetical acts and circumstances.  See final paragraph below.

3.  Same as answer number 2.

4.  No.

By agreeing to this proposal we are not asking the union to waive any rights employees may hypothetically have regarding the selection of a new union and/or to decertify Guild Local 194.  This proposal is intended to cover the conduct of union business and the employees represented by this union under this contract while it represents them.  We express, with this proposal, no position with respect to use of our systems in that circumstance because we are not bargaining about that circumstance.  Whatever our position is in that regard we will make that decision at the time that the circumstances present itself, but independent of Company Counterproposal No. 26.

 

Also on August 21, 2001, a bargaining session took place between the Union and Respondent.  Attorney L. Michael Zinser and Director of Human Relations Cynthia Walden represented Respondent. Lance Robertson represented the Union . Union member Randi Bjornstad contemporaneously recorded bargaining notes of this session.  The notes reflect that Zinser advised that counterproposal 26 applied to all members of the bargaining unit who were discussing any union business.  Zinser further said that counterproposal 26 would not address the issue of employee attempts to decertify the Union .  To date Respondent has not withdrawn counterproposal 26.  After all witnesses had been called, Zinser took the stand and testified over the objection of the General Counsel and Charging Party.  Zinser denied that on August 21, 2001, he said Respondent’s e-mail system could be used to decertify the Union .

C.  The Analysis

1.  Respondent’s communications policy

The General Counsel and the Union contend that Respondent’s maintenance of its communications policy is an overbroad prohibition on employees’ rights to make solicitations regarding Section 7 subjects.  Both the General Counsel and the Union argue that the employer’s computers and computer systems, including e-mail, constitute a work area within the meaning of Republic Aviation Corp.[4]  Since the communications policy ban on nonbusiness use of e-mail includes solicitation and is not limited to working time, it is presumptively unlawful.  Respondent argues that it has a right to prohibit the use of its personal property for nonbusiness purposes and that the Union agreed to the communications policy.

a.  The law

The Board has generally found that an employer may validly limit employee use of its communications equipment.  The Board has held that employees have no statutory right to use an employer’s equipment or media.  Mid Mountain Foods, Inc., 332 NLRB 229, 230 (2000).  Thus the Board has found no violation in nondiscriminatory limits on the use of employer bulletin boards,[5] telephones,[6] public address systems,[7] video equipment,[8] and e-mail.[9]

b.  The analysis

While the General Counsel and Charging Party argue that Respondent’s e-mail system amounts to a workplace and that employee solicitation cannot be totally banned without justification, I find the argument misplaced.  The Board has yet to hold that an e-mail system owned by an employer constitutes a workplace where an employer is prohibited from limiting all employee Section 7 solicitation.  Rather, the Board has consistently found that employers may nondiscriminatorily limit the use of their communications equipment without infringing on employees’ rights to solicit for Section 7 purposes.  I find that Respondent’s communications policy is not a facially overbroad no-solicitation/no-distribution rule but rather a valid limit on the use of its communications equipment.  I will dismiss this portion of the complaint.

2.  The May 5 and August 22 discipline of Prozanski

Both the General Counsel and Charging Party argue that Respondent’s communications policy was applied to Prozanski in a discriminatory fashion.  Thus they contend that the implementation of the policy itself violated Section 8(a)(1) of the Act.  Since Respondent applied the communications policy to Prozanski due to her activities on behalf of the Union, the General Counsel and Charging Party take the position Respondent violated Section 8(a)(3) of the Act.  Respondent contends that it applied its communications policy in a uniform manner that limited all use of its e-mail system by third party organizations.  Thus, its discipline of Prozanski was neither a violation of Section 8(a)(1) or (3) of the Act.

a.  The law

While an employer may limit the personal use of its property by employees, it may not do so in a manner that discriminates against employees’ Section 7 rights.  In a case involving the use of an employer’s e-mail system, the Board in E. I. du Pont de Nemours & Co., 311 NLRB 893, 919 (1993), found that the employer violated Section 8(a)(1) of the Act by allowing use of its e-mail system by employees for a wide variety of personal subjects but prohibited employees from using e-mail to distribute any union material.

Section 8(a)(3) of the Act prohibits employers from discriminating in regard to an employee’s “tenure of employment . . . to encourage or discourage membership in any labor organization.[10]

In 8(a)(3) cases the employer’s motivation is frequently in issue, therefore the Board applies a causation test to resolve such questions. Wright Line, 251 NLRB 1083, 1088 (1980).  The Wright Line test requires the General Counsel to make a prima facie showing sufficient to support an inference that the employee’s protected conduct motivated the employer’s adverse action.  “The critical elements of discrimination cases are protected activity known to the employer and hostility toward the protected activity.”  Western Plant Services, 322 NLRB 183, 194 (1996).  Although not conclusive, timing is usually a significant element in finding a prima facie case of discrimination.  Id. at 194.

If the General Counsel successfully presents a prima facie case of discrimination, the burden then shifts to the employer to persuade the trier of fact that the same adverse action would have occurred even in the absence of the employee’s protected activity.  Western Plant, supra.  To meet this burden, “an employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.”  Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).

b.  The analysis

The record is replete with evidence of personal use of Respondent’s e-mail system by its employees and managers both before and after Respondent disciplined Prozanski.  Respondent’s argument that it limited all e-mail use by third party organizations, including the Union , misses the mark.  First, there is evidence that Respondent permitted third party organizations such as Weight Watchers and United Way access to e-mail; second, the Board has drawn no distinction between non-business use of communications equipment by third party organizations as opposed to personal use by employees.  If an employer allows employees to use its communications equipment for nonwork related purposes, it may not validly prohibit employee use of communications equipment for Section 7 purposes.  Fleming Co., 336 NLRB 192, 194 (2001).  The evidence reflects Respondent has failed to enforce its communications policy.  It has permitted personal use of e-mail for a wide variety of nonbusiness purposes.  Having permitted a plethora of nonbusiness uses of e-mail, Respondent cannot validly prohibit e-mail dealing with Section 7 subjects.  Respondent’s argument that Prozanski’s use of e-mail was a more egregious violation of the communications policy since they were sent to multiple persons (spam) is without merit.  First, the practice of sending e-mail to multiple recipients was common practice by both employees and managers.  Second, there has been no evidence that sending e-mail to many addressees has any adverse impact on discipline or production.  I find Respondent’s enforcement of its communications policy in the May 5 and August 22 discipline of Prozanski violated Section 8(a)(1) of the Act.

It is clear that Prozanski was engaged in union activity at the time she sent her e-mail messages on May 4, August 14 and 18.  She sent the e-mail to union members on behalf of the Union .  Moreover, there is no dispute that Respondent was aware of Prozanski’s union activity.  Respondent noted in the disciplinary letters of May 5 and August 22 that Prozanski was engaged in Guild activity when she sent the e-mail.  Respondent stated in both disciplinary letters that Prozanski was being disciplined for sending the union-related e-mail in violation of its communications policy.  The General Counsel has established each prima facie element of its case establishing Respondent disciplined Prozanski in violation of Section 8(a)(3) of the Act.  The burden shifts to Respondent to prove that it would have disciplined Prozanski even in the absence of her union activity.

Respondent’s defense is based upon a faulty premise.  It assumes that the communications policy was enforced in a consistent, nondiscriminatory fashion.  As noted above, the communications policy was observed in the breach not the enforcement.  Having permitted a wide variety of nonbusiness use of its e-mail, Respondent cannot rely on this policy to establish it would have disciplined Prozanski in the absence of her union activity.  I find Respondent’s May 5 and August 22 discipline of Prozanski violated Section 8(a)(3) of the Act.

3.  Respondent’s insignia policy

The General Counsel and Charging Party contend that Respondent violated Section 8(a)(1) of the Act by enforcing an unwritten insignia policy that prohibited employee Ronald Kangail from wearing union insignia and displaying a union placard at work.  Respondent argues that it had the right to prohibit employees from wearing and displaying union insignia when dealing with the public.

a.  The law

While working, an employee’s right to wear and display union insignia is protected by Section 7 of the Act.  Republic Aviation Inc. v. NLRB, 324 U.S. 793 (1945); Albertson’s Inc., 319 NLRB 93, 102 (1995).  This right is balanced against an employer’s right to operate its business.  An employee’s right to wear insignia can be limited or prohibited only if the employer can show such a ban on Section 7 rights is mandated by “special circumstances.”  Mack’s Supermarket, 288 NLRB 1082, 1098 (1988).  Such special circumstances include employee safety, protecting the employer’s product or image, and ensuring harmonious employee relations.  Nordstrom, Inc., 264 NLRB 698, 700 (1982).  Mere exposure of customers to union insignia does not constitute a special circumstance.  Flamingo Hilton-Laughlin, 330 NLRB 287 (1999).

b.  The analysis

 There is no dispute that Kangail was wearing union insignia and displaying a union placard in his car while working for Respondent and dealing with the public.  Nor is there any controversy that Respondent directed Kangail to refrain from wearing his armband or from displaying his placard when dealing with the public. While Kangail’s display of union insignia was protected by Section 7 of the Act, Respondent has failed to show any special circumstance that would justify its ban on Kangail’s armband and placard in his auto while dealing with the public.  Thus, no probative evidence was adduced that Kangail’s display adversely affected Respondent’s business, employee safety, or employee discipline.  Moreover, Respondent’s vague, unwritten insignia policy has not been enforced in a wide variety of other situations.  District managers wore insignia, including baseball caps and shirts with various logos, while dealing with the public.  I find that by promulgating and enforcing its unwritten insignia rule prohibiting the display of union insignia in December 2000, Respondent violated Section 8(a)(1) of the Act.

4.  The October 25 counterproposal 26

The General Counsel and Charging Party argue that Respondent’s counterproposal is an illegal subject of bargaining.  It is argued that Respondent’s continued insistence on counterproposal 26 in collective bargaining violated Section 8(a)(5) of the Act.  Respondent contends that counterproposal 26 is a mandatory subject of bargaining.  Consequently, there is no violation of Section 8(a)(5) of the Act.

a.  The law

Neither party may require the other to agree to contract provisions that are unlawful under the Act.  National Maritime Union (Texas Co.), 78 NLRB 971, 981–982 (1948), enfd. 175 F.2d 686 (2d Cir. 1949).  However, merely proposing or bargaining about an illegal subject does not necessarily violate the Act.  A violation occurs when the opposing party has rejected the illegal proposal and the proponent continues to insist on the illegal subject.  In California Pie Co., 329 NLRB 968, 974 (1999), the Board found insistence on an illegal proposal violated Section 8(a)(5) of the Act.

b.  The analysis

Respondent contends that counterproposal 26 must be read in conjunction with the entire communications policy that applies to all employees.  Its argument seems to be that the union ban on use of communications equipment in counterproposal 26 is part and parcel of the companywide ban on all non-business use of communications equipment. This argument might hold water but for the fact that there was no enforcement of the communications policy on nonbusiness use, other than union use, of communications equipment.  Consequently, Respondent’s counterproposal 26 is an unlawful codification of a discriminatory policy and constitutes an illegal subject of bargaining.[11]  The Union repeatedly objected to this counter proposal and filed an unfair labor practice charge with the Board.  The Region dismissed this charge and later revoked the dismissal.  Respondent’s refusal to withdraw its illegal proposal violated Section 8(a)(5) of the Act.

Conclusions of Law

1.  By maintaining a rule which prohibits employees from wearing of union insignia and by discriminatorily maintaining and enforcing a rule which prohibits use of communications equipment for union purposes Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.

2.  By warning Suzi Prozanski on May 5 and August 22 Respondent violated Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

3.  By proposing, insisting upon and refusing to withdraw counterproposal 26 during collective bargaining, Respondent violated Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[12]

ORDER

The Respondent, Guard Publishing Company d/b/a The Register-Guard, Eugene , Oregon , its officers, agents, successors, and assigns, shall

1.  Cease and desist from

(a) Discriminatorily maintaining a rule that prohibits its employees from using its electronic communications systems for union purposes.

(b) Maintaining rules that prohibit a display of union insignia.

(c) Issuing written warnings to employees to discourage their activities on behalf of the Union .

(d) Refusing to bargain in good faith with Eugene Newspaper Guild, CWA Local 37194 ( Union ) as the exclusive collective-bargaining representative of employees in the following appropriate unit:

 

All employees described in the collective-bargaining agreement between Respondent and the Union , effective from October 16, 1996 to April 30, 1999.

 

(e) In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2.  Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Withdraw counterproposal 26 in any future negotiations with the Union over terms of a collective-bargaining agreement.

(b) Rescind the rule prohibiting the display of union insignia.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warnings to Suzi Prozanski, and within 3 days thereafter notify Prozanski in writing that this has been done and that the warnings will not be used against her in any way.

(d) Within 14 days after service by the Region, post at its facility in Eugene , Oregon , copies of the attached notice marked “Appendix.”[13]  Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted.  Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.  In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 7, 2000.

(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

(f) It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, San Francisco , California    February 21, 2002

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

 

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

 

We will not discriminatorily maintain or enforce a rule that prohibits employees from using electronic communications systems for union purposes.

We will not maintain rules that prohibit a display of union insignia.

We will not issue written warnings to employees to discourage their activities on behalf of the Union .

We will not refuse to bargain in good faith with Eugene Newspaper Guild, CWA Local 37194 ( Union ) as the exclusive collective-bargaining representative of employees in the following appropriate unit:

 

All employees described in the collective-bargaining agreement between Respondent and the Union , effective from October 16, 1996 to April 30, 1999.

 

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will withdraw counterproposal 26 in any future negotiations with the Union over terms of a collective-bargaining agreement.

We will rescind the rule prohibiting the display of union insignia.

We will within 14 days from the date of this Order, remove from its files any reference to the unlawful warnings to Suzi Prozanski, and within 3 days thereafter notify Prozanski in writing that this has been done and that the warnings will not be used against her in any way.

 

The Guard Publishing Company d/b/a The Register-Guard


 

 



1 The General Counsel filed a preargument brief and a brief in response to the Respondent’s and amici’s briefs.  The Charging Party and the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) jointly filed a preargument brief.  The Charging Party also filed a reply brief to the Respondent’s and amici’s briefs.  The Respondent filed a preargument brief, a reply brief to the General Counsel’s brief, and a reply brief to the brief jointly filed by the Charging Party and the AFL–CIO.  Amicus briefs were filed by the Council on Labor Law Equality, Employers Group, the HR Policy Association, the Minnesota Management Attorneys Association, Proskauer Rose LLP, the National Employment Lawyers Association, the National Workrights Institute, and the United States Chamber of Commerce.

2 In addition to our other findings set forth herein, we adopt the judge’s conclusion that the Respondent violated Sec. 8(a)(1) by maintaining an overly broad rule prohibiting employees from wearing or displaying union insignia while working with the public.  We agree with the judge that the Respondent failed to show special circumstances for the rule.  We also reject the Respondent’s argument that the allegation is time-barred by Sec. 10(b) because the rule was promulgated more than 6 months before the unfair labor practice charge.  Although the rule may have been promulgated outside the 10(b) period, the complaint also alleges, and the judge stated in his conclusions of law, that the Respondent violated Sec. 8(a)(1) by “maintain[ing]” the rule.  The maintenance during the 10(b) period of a rule that transgresses employee rights is itself a violation of Sec. 8(a)(1).  Eagle-Picher Industries, 331 NLRB 169, 174 fn. 7 (2000); Trus Joint MacMillan, 341 NLRB 369, 372 (2004); Control Services, 305 NLRB 435 fn. 2 & 442 (1991).

3 We shall modify the judge’s conclusions of law and recommended Order and substitute a new notice to conform to our findings and to the Board’s standard remedial language.

4 The judge found that Baker said, “OK, I understand.”  The record supports the finding that Baker said, “I understand,” but not that he said “OK” or otherwise expressly gave Prozanski permission to send the e-mail.

5 The warning stated in full:

On May 4, you used the company’s e-mail system expressly for the purpose of conducting Guild business.  As you know, this is a violation of the company’s Communications Systems Policy.  This is the second time this week that the policy was disregarded by officers of the Guild.

In our conversation on the afternoon of May 4, you acknowledged to me that the e-mail system was not to be used for Guild business and that you “should have known better.”  I agree.  What’s even more troubling to me, though, is that the message you sent—on the company’s e-mail system—is now posted on the Guild bulletin board, compounding the problem.  Employees who see that e-mail message are likely to assume that it’s OK to use the company’s e-mail for purposes other than company business.  And, of course, that’s not true.  If you composed and sent this e-mail on work time, that would also be inappropriate.  This letter will become part of your personnel file.

Baker also disciplined Bishop for his earlier e-mail about the union rally.  (The reference in Prozanski’s warning to “the second time this week” is apparently a reference to Bishop’s e-mail.)  The complaint does not allege that Bishop’s discipline or the enforcement of the CSP against Bishop was unlawful.

6 These cases are discussed in sec. V,A below.

7 The separate allegation that the Respondent discriminatorily enforced the CSP is discussed in sec. V,B below.

8 We do not rely on Adtranz, 331 NLRB 291 (2000), enf. denied 253 F.3d 19 (D.C. Cir. 2001), cited by the judge.  In Adtranz, there were no exceptions to the judge’s dismissal of an allegation that the employer violated Sec. 8(a)(1) by maintaining a rule restricting the use of e-mail for nonbusiness purposes.

9 In a later case, the Board held that employees may also engage in distribution on nonworking time in nonwork areas.  Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).  Because we find that e-mail use is governed by the decisions dealing with the use of an employer’s equipment, and not by cases dealing with oral solicitation and distribution of literature, we need not address the arguments by some amici that e-mail is more analogous to distribution than to solicitation.

10 The Board recently distinguished Republic Aviation in a case involving employee use of an employer’s personal property.  In Johnson Technology, Inc., 345 NLRB 762, 763 (2005), the Board found that the respondent did not violate Sec. 8(a)(1) by prohibiting an employee from using the employer’s scrap paper to prepare a union meeting notice.  The Board emphasized that “it is not unlawful for an employer to caution employees to restrict the use of company property to business purposes.”  Rejecting the General Counsel’s reliance on Republic Aviation, the Board further noted:  The issue in Republic Aviation was whether an employer’s right to control the activities of employees lawfully on its premises was subject to limitations to accommodate the employees’ Sec. 7 rights, such as to engage in prounion solicitations.  Here, the question is whether an employee can take and use the employer’s personalty, without its consent, to engage in a nonwork-related purpose such as a Sec. 7 activity.”   Id. at 763 fn. 8.

11 Testimony in the record that sending or receiving a simple “text” e-mail does not impose any additional monetary cost on the Respondent is of no consequence to our inquiry here.  The Respondent’s property rights do not depend on monetary cost.  Cf. Johnson Technology, supra at 763 (“[T]he issue is whether the [employees’] use of the property was protected, not how much the property is worth.”).  Moreover, although the dissent, noting that “the Respondent does not own cyberspace,” seems to question the very existence of Respondent’s property interest in its e-mail system, it is beyond doubt that the Respondent has a property interest in its servers that host its e-mail system and in the software on which it operates, as well as its computers on which the employees access e-mail.

12 Contrary to the dissent, in reaching this conclusion, we are not applying an “alternative means of communication” test appropriate only for questions of nonemployee access.  See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).  Rather, we are merely examining whether, as asserted by the dissent, e-mail has so changed workplace communication that the Board should depart from settled precedent and order that the Respondent must permit employees to use its e-mail system to communicate regarding Sec. 7 matters.  Such an analysis necessarily requires examination of whether the face-to-face solicitation and distribution permitted under Republic Aviation no longer enable employees to communicate.  As we find controlling here the principle that employees have no statutory right to use an employer’s equipment or media for Sec. 7 communications, neither Republic Aviation nor Lechmere is applicable.

13 We do not pass on circumstances, not present here, in which there are no means of communication among employees at work other than e-mail.

14 The Respondent contends that all allegations regarding enforcement of the CSP are time-barred by Sec. 10(b), which states in relevant part that “no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board.”  The Respondent argues that the 10(b) period runs from 1996, when the CSP was promulgated.  The Respondent further argues that it gave the Union clear and unequivocal notice in 1997 that the Respondent would invoke the CSP to prohibit union-related e-mails.  The Respondent relies on a 1997 memo from a manager to the Union ’s then-president, Bill Bishop, stating:  “I will take responsibility for opening the door to use e-mail for Company/Union communications     . . . I am now closing that door:  E-mail will no longer be used for Company/Union communications.  This of course applies also to using e-mail for Union or any other non-Company solicitations between employees.”

We find no merit in the Respondent’s argument that the 10(b) period runs from the promulgation of the policy in 1996 or from the 1997 memo to Bishop.  The Board considers each instance of disparate enforcement of a policy to be a separate and independent act for purposes of Sec. 10(b).  Norman King Electric, 334 NLRB 154, 162 (2001).  Moreover, even assuming the 1997 memo constituted notice to the Union that the Respondent would enforce the e-mail policy against union-related e-mails, the Respondent’s later actions were inconsistent with that memo.  The Respondent did not adhere to its own statement that it was “closing the door” to using e-mail for union communications.  The Respondent and the Union continued to communicate with one another by e-mail on matters such as scheduling bargaining sessions, and employees and managers continued to use e-mail for personal messages until the Prozanski incidents in 2000.  Thus, the Union reasonably would have believed the Respondent was not following the 1997 memo.  Accordingly, we reject the Respondent’s 10(b) defense.

15 The judge’s finding that Weight Watchers had access to the Respondent’s e-mail system is not supported.  The record shows that the Respondent distributed information on a Weight Watchers program through payroll stuffers, not e-mail.

16 Chairman Hurtgen, dissenting, would have dismissed the allegation based on the absence of any evidence that the employer permitted postings of any outside organizations.  Id. at 194–195.

17 On the other hand, an employer may use its own equipment to send antiunion messages, and still deny employees the opportunity to use that equipment for prounion messages.  As noted above, employees are not entitled to use a certain method of communication just because the employer is using it.  See Nutone, supra at 363–364.

18 Of course, if the evidence showed that the employer’s motive for the line-drawing was antiunion, then the action would be unlawful.  There is no such evidence here.

Member Kirsanow notes that in determining whether a facially Section 7-neutral line has been drawn with an antiunion motive, the employer’s reasonable interest in drawing that particular line would be, for Member Kirsanow, a relevant consideration.  That is, if the line drawn has the effect of prohibiting all Section 7 communications and is not based on any reasonable employer interest, Member Kirsanow would find an antiunion motive to be a permissible inference.

19 Indeed, the Board has already recognized that allowing limited charitable solicitations does not necessarily require an employer to allow union solicitations.  See Hammary Mfg. Corp., 265 NLRB 57 (1982) (an employer will not violate Sec. 8(a)(1) by “permitting a small number of isolated ‘beneficent acts’”—such as solicitation for a United Way campaign—as “narrow exceptions” to a no-solicitation rule, while prohibiting union solicitation).

20 Honeywell, Inc., 722 F.2d 405, 407 (8th Cir. 1983); Sprint/United Management Co., 326 NLRB 397, 399 (1998); Churchill’s Supermarkets, 285 NLRB 138, 156 (1987).

21 Accordingly, we overrule the Board’s decisions in Fleming, Guardian, and other similar cases to the extent they are inconsistent with our decision here.

We note, however, that our view of “discrimination” is broader than that of some courts.  See, e.g., Cleveland Real Estate Partners v. NLRB, 95 F.3d 457, 465 (6th Cir. 1996) (in case involving nonemployee access to an employer’s premises, court defined “discrimination” as “favoring one union over another or allowing employer-related information while barring similar union-related information”).

22 We also reject the dissent’s assertion that our test, taken to its logical extreme, is a license for an employer to permit almost anything but union communication as long as the employer does not expressly say so.  Indeed, the hypothetical postulated by the dissent shows the fallacy of this assertion.  Thus, contrary to the dissent, a rule barring all nonwork-related solicitations by membership organizations certainly would not “permit employees to solicit on behalf of virtually anything except a union,” given the vast number of membership organizations in which employees may participate.

23 The sole exception is the limited use of e-mail in connection with the Respondent’s United Way campaign, which does not establish discriminatory enforcement.  Hammary Mfg. Corp., 265 NLRB 57 (1982) (an employer does not violate 8(a)(1) “by permitting a small number of isolated ‘beneficent acts’ as narrow exceptions to a no-solicitation rule”).

24 The dissent asserts that there is no clear evidence that the Respondent ever enforced the CSP against anything other than union-related messages.  However, there is no evidence that any employee had ever previously sent e-mails soliciting on behalf of any groups or organizations.  Accordingly, given the absence of evidence that the Respondent permitted employees to use e-mail to solicit support for groups or organizations, we decline to find that the Respondent’s barring of e-mail solicitation on behalf of the Union constituted disparate treatment of activities or communications of a similar character.

The dissent further argues that the Respondent’s barring of e-mail solicitations on behalf of the Union was unlawful because the CSP barred all “non-job-related” solicitations, but the Respondent—in practice—permitted personal e-mail messages, such as jokes, baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.  We note, however, that the court of appeals in Fleming Co., above, similarly found lawful the employer’s removal of union literature from a bulletin board even though the employer’s rule barring posting of all noncompany material was not enforced and posting of personal notices was routinely allowed.

25 The Respondent argues that in sending all three e-mails, Prozanski was acting as a nonemployee union agent, not as an employee, and that her conduct is therefore governed by Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).  Lechmere holds that an employer may exclude nonemployee union agents from its property, except where the employer acts discriminatorily or where the union has no reasonable alternative means to communicate with the employees.  Id. at 535, 538.  Prozanski was the union president, and she sent the August 14 and 18 e-mails from the union office.  However, we need not reach the issue of whether Lechmere applies because it would not change the result.  There would still be a violation as to the May 4 e-mail under Lechmere’s discrimination exception.  There would be no violation as to the August 14 and 18 e-mails because there was no discrimination, and there is no allegation that the Union lacked reasonable alternative means of access to employees.

26 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

27 Contrary to the dissent, we do not find that the Union ’s second filing of the charge in itself provided evidence establishing the violation alleged in the charge.

28 Under these circumstances, we find it unnecessary to pass on whether the proposal itself was unlawful.

29 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

1 We join the majority in rejecting the Respondent’s 10(b) defenses and in holding that the Respondent violated Sec. 8(a)(1) by maintaining an overly broad rule prohibiting employees from wearing or displaying union insignia while working with the public.

2 The record in this case closed in 2001.  Although not necessary, it is safe to assume that, in the interim, employee use of computers and e-mail has only increased.

3 The circumstances leading up to Prozanski’s message are described more fully in the majority decision.

4 As discussed more fully in sec. II,B,1 of the majority decision, Bishop’s discipline, too, was for a union-related e-mail.  That discipline is not alleged to be unlawful.

5 See Beth Israel, supra at 490 (noting that the employer recognized the cafeteria as a “natural gathering place” for employees, because the employer had used and permitted use of the cafeteria for other types of solicitation and distribution).

6 We also disagree with the majority’s characterization of our approach as “carv[ing] out an exception” to precedent.  O ur analysis is hardly novel.  Rather, as explained below, we apply the decades-old principles that employees have a right to communicate in the workplace, that the Board must balance that right with the employer’s right to protect its business interests, and that interference with employees’ Section 7 rights is unlawful unless outweighed by a legitimate business interest.  Republic Aviation, supra, 324 U.S. at 803 fn. 10; Beth Israel, supra, 437 U.S. at 494; Jeannette Corp., supra, 532 F.2d at 918.

7 American Management Association, 2004 Workplace E-Mail and Instant Messaging Survey (2004).

(www.amanet.org/research/pdfs/IM_2004_summary.pdf).

8 Id.

9 Martin H. Malin & Henry H. Perritt Jr., “The National Labor Relations Act in Cyberspace:  Union Organizing in Electronic Workplaces,” 49 U. Kan. L. Rev. 1, 17 (Nov. 2000).

10 See sec. V,A of the majority decision.

11 In any event, the statements in Churchill’s, supra, and Union Carbide Corp., 259 NLRB 974, 980 (1981), enfd. in rel. part 714 F.2d 657 (6th Cir. 1983), that an employer may bar all personal use of its telephones were dicta.  In both of those cases, the Board found that the employer had discriminatorily prohibited union-related telephone calls while allowing other personal calls.  Therefore, the Board was not faced with the issue of whether a nondiscriminatory ban on personal use was lawful.

The majority states that the Board “reaffirmed” Union Carbide in Mid-Mountain Foods, 332 NLRB 229 (2000), enfd. 269 F.3d 1075 (D.C. Cir. 2001), by citing Union Carbide for the principle that employees have no statutory right to use an employer’s telephone for non-business purposes.  The majority in Mid-Mountain did cite Union Carbide in passing for that principle, but did not engage in any analysis specific to the use of an employer’s telephone system.  Mid-Mountain involved the use of an employer’s television set, not its telephone system.  In any event, Member Liebman dissented on that issue in Mid-Mountain, and Member Walsh did not participate in the case.

12 Cf. Sprint/United Management Co., 326 NLRB 397, 399 (1998) (drawing a distinction between a bulletin board and the locker space that the respondent had “already ceded . . . to the personal use of the employees to whom the lockers are assigned”).

13 See, e.g., Compuserve Incorporated v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1022–1023 (S.D. Ohio 1997) (injunction granted to internet service provider against spam advertiser; handling the enormous volume of mass mailings burdened plaintiff’s equipment, and many subscribers terminated their accounts because of the spam); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004) (use of computer “robots” to obtain data through multiple queries of plaintiff’s database consumed a significant portion of the system’s capacity, and if the practice were permitted to continue, it was “highly probable” that others would devise similar programs, leading to overtaxing of the system).

14 See, e.g., Pearl Investments, LLC v. Standard I/O, Inc., 257 F.Supp. 326, 354 (D. Me. 2003) (even if defendant accessed the network without authorization, “there is no evidence that in doing so he impaired its condition, quality or value”); Intel Corp. v. Hamidi, 71 P.3d 296, 304, 308 (Cal. 2003) (no liability where evidence did not show that ex-employee’s multiple e-mails criticizing the company “used the system in any manner in which it was not intended to function or impaired the system in any way”; “Whatever interest Intel may have in preventing its employees from receiving disruptive communications, it is not an interest in personal property. . . .”).

15 See, e.g., Stoddard-Quirk Mfg. Co., 138 NLRB 615, 621 (1962) (“the right of employees to [orally] solicit on plant premises must be afforded subject only to the restriction that it be on nonworking time”; in contrast, distribution of flyers and other printed material may be limited to nonworking time and nonworking areas).

16 We would, however, require specific evidence to support such an assertion. “‛Suffer the servers’ is among the most chronically overused and under-substantiated interests asserted by parties . . . involved in Internet litigation. . . .”  White Buffalo Ventures v. University of Texas at Austin, 420 F.3d 366, 375 (5th Cir. 2005), cert. denied 546 U.S. 1091 (2006).

17 As with oral solicitations, however, if an employer has no rule in place that limits nonwork-related e-mails to nonworking time, the employer must show an actual interference with production or discipline in order to discipline employees for e-mails sent on working time.  See, e.g., Union Carbide, supra at 979.

The Respondent and various amici argue that because of the nature of e-mail, enforcement of a “working time” restriction would be difficult.  But similar difficulties exist even with oral solicitation rules.  For example, where employees self-regulate their breaks, where a supervisor is not constantly present, or where the nature of the employees’ work requires them to move around the workplace rather than stay at a particular workstation, an employer may have difficulty enforcing an oral solicitation rule.  That difficulty, however, has never been held to be a special circumstance justifying an outright ban on employee-to-employee communications.

18 Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir. 2003); Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995).

19 As the Seventh Circuit itself has observed, it is not the obligation of the Board to “knuckle under to the first court of appeals (or the second, or even the twelfth) to rule adversely to the Board.  The Supreme Court, not this circuit . . . is the supreme arbiter of the meaning of the laws enforced by the Board . . . .”  Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063, 1066 (1988).  Rather, the court continued, the duty of the Board when faced with adverse circuit precedent is “to take a stance, to explain which decisions it agree[s] with and why, and to explore the possibility of intermediate solutions. . . .  We do not follow stare decisis inflexibly; if the Board gives us a good reason to do so, we shall be happy to reexamine [our decisions].”

20 But see J. C. Penney Co. v. NLRB, 123 F.3d 988 (7th Cir. 1997) (cited in Fleming, supra at 974–975) (employer violated 8(a)(1) by removing union postings from bulletin boards and union bumper stickers from work carts while allowing other postings and stickers; court emphasized that the employer’s enforcement of its bulletin board policy was “spotty” and rejected an argument that the stickers permitted on the work carts were “not similar in character” to union stickers, because they were personal).

21 On that basis alone, we would have to reject the majority’s definition of 8(a)(1) discriminatory enforcement as “disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status” (emphasis supplied).  This improperly suggests that discriminatory motive is required—something even the Seventh Circuit does not propose.

22 See, e.g., Honeywell, 722 F.2d at 407 (an employer’s decision to allow other bulletin board postings “minimize[d] its managerial concerns”); Sprint/United Management Co., supra, 326 NLRB at 399 (1998) (where the employer had “already ceded the locker space to the personal use of the employees to whom the lockers are assigned,” the employer “has clearly already assumed the risk” that the presence of other materials in the lockers could cause notices the employer places there to be overlooked; “[t]hus, the [employer] cannot legitimately claim that concern as a reason for refusing to allow employees to put union literature into the lockers”); Churchill’s, 285 NLRB at 156 (“When an employer singles out union activity as its only restriction on the private use of company phones, it is not acting to preserve use of the phones for company business.  It is interfering with union activity    . . . .”); White, supra at 111 (“Under a [S]ection 8(a)(1) balancing approach, an employer that permits solicitation by employees during working time for nonunion activities is hard-pressed to stand on its managerial interests in production and discipline when the working time solicitation is on behalf of the union.”) (citations omitted).

23 Id. at 362.  Sec. 8(c) states:  The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.”

24 The Board decisions cited by the majority are also inapposite.  In Salmon Run Shopping Center , 348 NLRB No. 31 (2006), the Board found that the employer’s exclusion of nonemployee union organizers from the premises was discriminatorily motivated.  Because Salmon Run involved access by nonemployees, it implicated the employer’s property interests, not just its managerial interests.  See id., slip op. at 1.  Even aside from that distinction, the fact that the employer in Salmon Run had a discriminatory motive for excluding the union does not mean that proof of such a motive is required in order to find a violation.

Enloe Medical Center, 348 NLRB No. 63 (2006), involved a facially discriminatory rule (barring union literature, but nothing else, from the breakroom), not a facially neutral rule that was discriminatorily applied.  In any event, the fact that a rule will violate Sec. 8(a)(1) if it expressly singles out union activity does not establish that an express “singling out” is required in order to find a violation. In short, Salmon Run and Enloe are examples of particularly clear-cut and obvious violations, but nothing in those decisions suggests that they limit the circumstances under which a violation may be found, redefine “discrimination,” or otherwise modify the Board’s longstanding precedent.

25 For similar reasons, we reject as utterly meritless the Respondent’s argument that, because employee Suzi Prozanski sent her e-mails in her capacity as union president, her right of access to the computer system must be evaluated under the Lechmere standard governing nonemployee access to an employer’s premises.  Prozanski was an employee as well as the union president.  To contend that an employee who engages in activity on behalf of her union no longer has the Section 7 rights of an employee, but only the “derivative” rights of a nonemployee, is nonsensical.  When employees communicate with one another about union or other Section 7 matters, whether or not they act “for” their union, they are exercising their own, nonderivative Section 7 rights.  See Nashville Plastic Products, 313 NLRB 462, 463 (1993) (“the rule enunciated in Lechmere does not apply to employees”).

26 For example, an employer might prohibit all nonwork-related solicitations by membership organizations.  Such a rule would extend privileges to employee solicitations on behalf of any commercial enterprise and many charities and other activities, but not to employee solicitations on behalf of the union representing the employees—the entity through which the employees have chosen to vindicate their Sec. 7 right to engage in concerted activity.  In other words, the rule would permit employees to solicit on behalf of virtually anything except a union.  Yet, on its face, this policy would not “draw the line” on Sec. 7 grounds, and would therefore be lawful.  Such a result stands labor law on its head.

The majority notes that a line drawn out of antiunion motive will still be unlawful.  As noted above, however, motive is not an element of this type of 8(a)(1) violation.

27 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

28 We do not rely on California Pie Co., 329 NLRB 968, 974 (1999), cited by the judge to support his finding of insistence.  In that case, there were no exceptions to the finding that the respondent insisted on an illegal subject.

29 NLRB v. J. Weingarten, 420 U.S. 251, 266 (1975).

30 Babcock & Wilcox, supra at 113.

[1] In its answer, Respondent contends that this allegation is not encompassed by the underlying unfair labor practice charges and is time-barred by Section 10(b) of the Act.  A complaint is not restricted to the precise allegations of the charge.  As long as there is a timely charge, the complaint may allege any matter sufficiently related to or growing out of the charged conduct.  NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959).  The test that applies for adding related uncharged allegations is stated in Redd-I, Inc., 290 NLRB 1115, 1115–1116 (1988).  In applying the closely related test set forth in Redd-I, the Board looks at three factors.  Whether the untimely allegation involves the same legal theory as the timely charge.  Whether the untimely allegation arises from the same factual circumstances or sequence of events as the timely charge.  Whether the respondent would raise the same or similar defenses to both allegations.  I find that the allegation in the complaint is closely related to the timely charge in Case 36–CA–8743.

[2] All dates are in 2000, unless otherwise indicated.

[3] At the end of the trial counsel for the General Counsel without objection requested leave to submit official Board documents to explain the status of Case 36–CA–8075.  On November 20, 2001, counsel for the General Counsel submitted the order consolidating cases, consolidated complaint and notice of hearing dated February 29, 2000 in Case 36–CA–8075.  There being no objection to its introduction into the record, this document will be received as GC Exh. 63.

[4] 51 NLRB 1186 (1943), enfd. 142 F.2d 193 (2d Cir. 1944), affd. 324 U.S. 793 (1945).

[5] Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983).

[6] Union Carbide Corp., 259 NLRB 974, 980 (1981), enfd. in relevant part 714 F.2d 657, 663–664 (6th Cir. 1983).

[7] The Heath Co., 196 NLRB 134 (1972).

[8] Mid Mountain Foods, Inc., supra.

[9] Adtranz AAB Daimler-Benz Transportation NA, Inc., 331 NLRB 291 (2000).  In affirming the ALJ’s decision, the Board noted that no exceptions were filed to the judge’s finding that Respondent’s ban on nonbusiness use of its e-mail system did not violate Sec. 8(a)(1) of the Act.

[10] 29 U.S.C. Sec. 158(a)(3).

[11] Respondent’s reliance on Board cases that find computer access policy and the use of other communications equipment mandatory subjects of bargaining is inapposite.  The issue here is not whether the communications policy was a mandatory subject of bargaining but whether counterproposal 26 was an illegal subject of bargaining.

[12] If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.

[13]  If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading “Posted By Order Of The National Labor Relations Board” shall read “Posted Pursuant To A Judgment Of  The United States Court Of Appeals Enforcing An Order Of The National Labor Relations Board.”

 

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