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.
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,
to reverse them in part, and to adopt the recommended Order as modified
and set forth in full below.
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.”
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.”
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 equipment
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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 Line
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.
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.
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.”
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.
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.
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.
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.
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,
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.
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.
About 86 percent of employees send and receive at least some
nonbusiness-related e-mail at work.
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.”
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.
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.
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.
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.
Courts have dismissed claims where there was no such
evidence.
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.
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.
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.
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.
As explained below, we
respectfully but emphatically disagree with the Seventh Circuit’s
analysis.
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.
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.
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.
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,”
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.
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.
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.
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,
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.”
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”—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.
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)
on May 5 and August 22, 2000,
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,
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.
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,
telephones,
public address systems,
video equipment,
and e-mail.
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.”
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.
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
