The National Labor Relations Board (NLRB), issuing a stinging blow to unions on Dec. 16, 2007, ruled that an employer can prohibit workers from using its e-mail system for union business.
In its long-awaited, highly controversial ruling, split 3-2 along party lines, the Republican majority announced and applied a new standard for determining whether an employer has improperly discriminated against the union in enforcing its e-mail use policy.
The ruling involved The Register-Guard, a newspaper in Eugene, Ore., and e-mail messages sent in 2000 by a union organizer who used the company's e-mail system to urge employees marching in a town parade to wear green in support of the union in contract negotiations.
In its decision, the NLRB specified the types of e-mail policies that would be unlawful under the new standard. Examples include:
- Allowing employees to use e-mail to solicit for one union but not another.
- Permitting solicitation by anti-union workers but not pro-union workers.
On the other hand, the board ruled that it would be acceptable for a company to draw a line between charitable and noncharitable solicitations to allow solicitations for organizations such as the Red Cross but not a union.
The ruling passed over union claims--and the arguments of the NLRB’s two Democrats--that e-mail systems have become a key way for employees to communicate freely.
And while the Democrats argued that the majority's logic would permit an employer to allow just about every type of e-mail but union communications, the majority held firm.
In each of its examples, the board wrote, "the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates" against the union. For instance, the board reasoned, "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."
Democrats and unions had argued that employees' interest in communicating with other workers about union activity and other collective concerns should, with regard to the e-mail system, outweigh the employer's property interest.
The e-mail ruling was released in the closing hours of the terms of NLRB Chairman Bob Batista, a Republican, and Democrat Dennis Walsh. Batista and Walsh have been serving in temporary positions at the board pending reappointment. The remaining board members--two Republicans and one Democrat--are permitted to continue issuing decisions, but past practice has been to hold controversial rulings until all seats are filled.
NLRB Finds No Statutory Right to Use Employer's E-mail System for "Sec. 7 Communications," NLRB press release, Dec. 21, 2007
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