[NYTr] NLRB Restricts Union Use of Employer E-mail

[All the News That Doesn't Fit]

[It's not clear exactly WHY any union worth its salt would even want to
use employer e-mail services. They should get their own domains and
provide (and safeguard) their own private and secure e-mail
services.-NYTr]


The New York Times - Dec 23, 2007
http://www.nytimes.com/2007/12/23/us/23labor.html

Labor Board Restricts Union Use of E-Mail

By STEVEN GREENHOUSE

The National Labor Relations Board has ruled that employers have the
right to prohibit workers from using the company’s e-mail system to
send out union-related messages, a decision that could hamper
communications between labor unions and their membership.

In a 3-to-2 ruling released on Friday, the board held that it was legal
for employers to prohibit union-related e-mail so long as employers had
a policy barring employees from sending e-mail for “non-job-related
solicitations” for outside organizations.

The ruling is a significant setback to the nation’s labor unions, which
argued that e-mail systems have become a modern-day gathering place
where employees should be able to communicate freely with co-workers to
discuss work-related matters of mutual concern.

The ruling involved The Register-Guard, a newspaper in Eugene, Ore.,
and e-mail messages sent in 2000 by Suzi Prozanski, a newspaper
employee who was president of the Newspaper Guild’s unit there. She
sent three e-mail messages about marching in a town parade and urging
employees to wear green to show support for the union in contract
negotiations.

During the years that this case was pending, many companies were
uncertain whether they could bar union-related e-mail. But the labor
board’s decision gives companies nationwide the green light to prohibit
union-related e-mail as part of an overall nonsolicitation policy.

“An employer has a ‘basic property right’ to regulate and restrict
employee use of company property,” the board’s majority wrote. “The
respondent’s communications system, including its e-mail system, is the
respondent’s property.”

Labor leaders attacked the decision, calling it part of board rulings
that have favored employers and undercut workers.

“Anyone with e-mail knows that this is how employees communicate with
each other in today’s workplace,” said Jonathan Hiatt, general counsel
for the A.F.L.-C.I.O. “Outrageously in allowing employers to ban such
communications for union purposes, the Bush labor board has again
struck at the heart of what the nation’s labor laws were intended to
protect — the right of employees to discuss working conditions and
other matters of mutual concern.”

The ruling comes as the nation’s labor unions continue to struggle to
reverse their membership declines. They represent just 12 percent of
the nation’s work force, down from 35 percent in the 1950s.

The two board members who dissented asserted that the employees’
interest in communicating with other employees about union activity and
other collective concerns should, with regard to the e-mail system,
outweigh the employer’s property interest.

They wrote, “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.”

The majority’s decision was dated last Sunday, the day the board’s
chairman, Robert J. Battista, stepped down because his term expired.
President Bush has not renominated Mr. Battista, with many Democrats
threatening not to reconfirm him because he has been part of so many
anti-union rulings.

The board overturned several decisions it had made in ruling that an
employer does not illegally discriminate against pro-union speech if it
lets employees use e-mail for personal communications but bars them
from using e-mail for solicitations for outside organizations.

Adopting the reasoning of the United States Court of Appeals for the
Seventh Circuit, involving two cases concerning the use of employer
bulletin boards, the labor board distinguished between personal
non-work-related postings like for-sale notices and wedding
announcements, on the one hand, and group or organizational postings
like union materials on the other.

In many past cases, the labor board ruled that employers engaged in
illegal anti-union discrimination if they barred workers from engaging
in union-related speech on bulletin boards or telephones when they
allowed workers to communicate on bulletin boards or telephones about
other matters.

In its new ruling, the board’s majority wrote that employers can allow
workers to use e-mail for personal communications while barring them
from organizational-related communications. The majority redefined the
meaning of discrimination and wrote that the Seventh Circuit’s approach
“better reflects the principle that discrimination means the unequal
treatment of equals.”

Adopting another new policy, the board appeared to allow employers to
bar e-mail for certain organizational activities, like promoting a
union or Avon products, but not organizational activities related to
charities.

The dissenters said the majority’s decision, in allowing employers to
bar solicitation with regard to some activities and not others, “would
allow employees to solicit on behalf of virtually anything except a
union.”