The NLRB ruled Friday (by a 3-2 vote, split along party lines) that an employer did not violate federal labor law by maintaining a policy that prohibited employees from using company email to communicate about union activities. According to the Wall Street Journal, the decision was based on a finding that a company’s email system is a form of property – and that employees do not have a legal right to use company property for personal use.
In the case at issue, The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194. Cases 36 – CA – 8743 – 1, 36-CA-8849-1, 36-CA-8789-1, and 36-CA-8842-1 , the employer had a policy that governed employees’ use of the company’s communications systems, including e-mail. According to the NLRB decision, that 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.”
In its ruling, the NLRB noted that the employer – the Register-Guard, aEugene, Oregon, newspaper published by Guard Publishing Co. – was aware that employees used that e-mail to send and receive personal messages, in addition to work-related matters. It noted evidence of e-mails “â€¦such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.” It did note, however, there was “â€¦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.”
At issue were a series of emails from Suzi Prozanski, a unit employee and the union president, who received two written warnings for sending three e-mails to unit employees at their work email addresses. The first in response to a company email about a planned union rally (the company had suggested that workers might want to head out early because of a police warning about the possibility of "anarchists" at the rally) entitled "setting it straight." She composed the e-mail on her break but sent it from her work station. Later that year Prozanski received a second written warning for two e-mails that asked employees to wear green to support the Union's position in negotiations, and another asking employees to participate in the Union's entry in an upcoming town parade. These were sent to work email addresses - but from a computer in the Union's office (Prozanski testified she thought that the earlier 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).
In subsequent negotiations with the union, language was proposed by the employer that said, "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." The union initially said it would not respond to the proposal because it viewed it as illegally restricting their rights. According to the NLRB ruling, on November 30, 2000, the Union filed a charge alleging that the Respondent violated Section 8(a)(5) by proposing the change.
Noting that an employer may lawfully limit employee use of the employer's equipment or media, Administrative Law Judge John J. McCarrick found that the employer's action in maintaining the communication systems policy was appropriate. However, the judge found that the employer 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 (See NLRB to Hear Arguments on Employer E-mail Use for Union Activities ), and also found that disciplining Prozanski for the emails violated Section 8(a)(3) and (1). He also found that the employer violated Section 8(a)(5) and (1) by insisting on the change in the communication policy language, which he said was actually a "codification of the Respondent's discriminatory practice of allowing personal e-mails but not union-related e-mails," according to the NLRB.
The NLRB found that employees had no statutory right to use the Respondent's e-mail system for Section 7 matters ( 1) . Acknowledging that the application to email was a situation of "first impression," the NLRB said: "In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned propertyÂ—such as bulletin boards, telephones, and televisionsÂ—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."
(1) 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.
Noting that e-mail has "â€¦had a substantial impact on how people communicate, both at and away from the workplace," the NLRB majority cited a number of similarities between e-mail messages and telephone calls. "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," they wrote, going on to note that, "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."
Despite those similarities (and some differences), the majority said that "â€¦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 levelâ€¦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."
Rip Van Winkle?
The dissenting board members took the majority to task for their position, noting that the decision "confirms that the NLRB has become the 'Rip Van Winkle of administrative agencies.'" They challenged the notion that email "â€¦is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper." Disputing the notion that email constituted a property of the employer ("â€¦we reject the majority's conclusion that e-mail is just another piece of employer 'equipment.'"), the dissenting members said the National Labor Relations Act "â€¦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."