Regulate Employee Personal Use
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In The Register Guard case, the NLRB held that employers can prohibit the use of the employer's email facilities for union organizing or union matters. The Republican-appointed majority viewed this holding as consistent with the employer's basic property right to regulate employee use of company property. That is, the NLRB should treat an employer's email policy as it does for employer policy on its property such as bulletin boards, telephones and televisions. The majority's reasoning is summed up as follows. 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 (A [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 A 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. . . Democrats Liebman and Walsh wrote a lengthy dissent. Their reasoning boils down to the following. 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 A 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 A non-job-related solicitations@ was lawful. 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 A 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 A 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@ ). |
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Because the majority and minority Board opinions are phrased in terms of classifications, and because lawyers are trained in law school to think that way C law school professors are saying that the major difference between the majority and the minority of the NLRB boils down to how one views e-mail communications: as equipment use or as a form of speech. However, such a classification approach is not helpful if one is trying either to convince one side or the other to change its opinion, or trying to lead both sides to resolve their differences into one unified compromise solution. A better approach is to look at values behind such words used in the opinion as "it is simply absurd to find an e-mail system analogous to a telephone". When one does, one understands that the difference between the majority and minority is at heart a difference in assumptions and values. Those assumptions and values are summed up in the value question: How important is the right of the owner of property to have the property used only to the owner's advantage? (Or the alternative question: How important is the employees' right to organize their opposition to the employer?) The majority assumption driving its decision is that there is a greater value to the owner's A right@ to decide on the use of his property than an employee's A right@ to use of the property to organize their own activities. The minority assumption driving its opinion is that is a greater value to the A right@ of employee association for bargaining with the employer than an employer's Aright" to use of the property to prevent such association. If the NLRB decision were phrased in terms of personal evaluation of rights, however, however, the writers would be seen to be using personal values to make the decision, a bad way to be seen in public. Hence, both sides wrote opinions phrased in terms of how to classify the employer's action (lawful use of equipment vs. unlawful muzzling protected speech). The job for the ethics officer at the Register-Guard now has to include getting labor and management to discuss the assumptions used by both sides, and to get labor and management to recognize and respect the value assumptions of the other side. Absent such understanding, recognition, and respect, the gulf between labor and management will grow, to the detriment of the company. With such understanding, there is a chance to move the company onward. Endnotes The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, 351 NLRB No. 70 (Dec. 2007) (Liebman, W. & Walsh, D., dissenting). Available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/V35170.pdf |
One of the members of the
Another member is an expert in a clinical pragmatism method used to resolve specific problems. The ethics experts of
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round table group is an acknowledged expert in bridging conflict.