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The National Labor Relations Board is considering what right employees have to use their company’s e-mail system to communicate with each other about union activity and what restrictions an employer may place on union-related communications. See The Register-Guard, NLRB, No. 36-CA-8743-1 (oral argument March 27, 2007). Access to employees in the workplace is frequently a threshold concern in a union-organizing campaign. The NLRB and the courts have sought to accommodate the right of self-organization assured to employees and the equally undisputed right of employers to maintain discipline in their operations. In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945), the U.S. Supreme Court adopted the presumption that enforcing and promulgating a rule prohibiting union solicitation by employees outside working time, though on company property, is “an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary for maintaining production or discipline.” The corollary presumption is that promulgating and enforcing a no-solicitation rule for working time “must be presumed valid in the absence of evidence that it was adopted for a discriminatory purpose.” The rationale for these solicitation-rule presumptions is that “working time is for work,” but the time outside working time “is an employee’s time to use as he likes without unreasonable restraint,” even when he is on company property. Peyton Packing Co., 49 NLRB 828, 843 (1943). A distinction is made between the right of an employer’s employees and those who are not (i.e., the outside union organizer). See Lechmere Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). A rule presumptively valid on its face is also presumptively valid as to its promulgation and enforcement, but these presumptions can be rebutted by evidence establishing a discriminatory purpose in adopting or applying the rule. Separate and apart from employee solicitations in the workplace, employers generally may prohibit their employees’ use of company property, such as copy machines and bulletin boards, for communication purposes, even during nonworking time. Container Corp. of America, 244 NLRB 318, 318 n.2 (1979), modified on other grounds, 649 F.2d 1213 (6th Cir. 1981). However, an employer may not promulgate or enforce such use restrictions in ways that “unlawfully discriminate” against union communications. NLRB and circuits at odds over bans on union activity The board and certain circuit courts disagree regarding what is unlawful discriminatory enforcement. The board has taken the position that it is unlawful when an employer applies a communications ban to just union-related activity, while permitting other types of nonbusiness-related employee or third-party communications (e.g. employee or third-party solicitation for Girl Scout cookies, Christmas ornaments and raffle tickets), but certain courts disagree. See e.g., 6 West Ltd. Corp. v. NLRB, 237 F.3d 767 (7th Cir. 2001), denying enforcement to 330 NLRB 527 (2000); Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir.), rev’g 329 NLRB 618 (1999); and Guardian Industries v. NLRB, 49 F.3d 317 (7th Cir. 1995), denying enforcement in relevant part to 313 NLRB 1275 (1994). Indeed, the Supreme Court has held that a public employer may open its internal mail system to communications about civic and church meetings, while keeping it closed to communications on behalf of unions. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S. 37 (1983). In the Register-Guard case, an administrative law judge (ALJ) had found that an employer acted unlawfully by discriminatorily maintaining and enforcing a rule prohibiting the use of all communications equipment for union purposes and disciplining an employee who used this equipment for union purposes. The employer was a daily newspaper that had promulgated a written communications policy applying to users of all of its communications systems, including telephones, message machines, computers, fax machines and photocopiers. The policy provided: “Communication 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.” It further provided that such improper use would result in discipline, up to and including termination. The employer issued disciplinary warnings to an employee who served as union president for violating the communications policy by sending union-related e-mails. The record evidence showed that both employees and managers used e-mails at work for nonbusiness purposes (e.g., regarding parties, jokes, breaks, community events, sporting events and birthdays) without reprimand. The employer’s general manager admitted that he received personal e-mail from other employees and had not disciplined them. The ALJ first found that the communications policy was not facially overbroad, but rather was a lawful limitation on employees’ use of their employer’s communication equipment. He rejected the argument that the employer’s e-mail system amounted to a “workplace” and that employee solicitation cannot be totally banned without justification, reasoning that the board has yet to hold that an e-mail system owned by an employer is a “workplace” where an employer is prohibited from limiting all employee solicitations, and the board has consistently held that employers may on a nondiscriminatory basis limit the use of their communications equipment without unlawfully infringing on their employees’ right to solicit. The ALJ further found, however, that the employer’s communication policy was applied to the disciplined employee in an unlawfully discriminatory fashion because the record was replete with evidence of personal use of the employer’s e-mail system by its employees and managers. The ALJ rejected the employer’s argument that it limited all e-mail use by third-party organizations because there was evidence that the employer permitted third-party organizations access to its e-mail; the board has drawn no distinction between nonbusiness use of communication equipment by third-party organizations as opposed to personal use by employees; if an employer allowed employees to use its communication equipment for nonwork-related purposes, it may not lawfully prohibit employee use of communication equipment for union purposes; and the evidence reflected that the employer permitted employees personal use of e-mail for a wide variety of nonbusiness purposes. Thus, the employer’s failure to enforce its communication policy against other forms of nonbusiness communications prevented the employer from relying on this policy to discipline the employee for union-related e-mails. At the oral argument before the board on March 27, the general counsel argued that the board should accommodate the employees’ interest in communicating with each other by finding a broad policy prohibiting all nonbusiness e-mail use presumptively unlawful. The general counsel argued that some intrusion on employer property rights was necessary to protect employees’ rights, that e-mail was a substitute for oral communication and that other available means of communication are irrelevant when considering workplace communications among employees. The general counsel acknowledged, however, that employers have the right to monitor their e-mail system, that employees have no expectation of privacy when using e-mail on the employer’s system and that employers have the right to restrict personal e-mail activity to nonworking time. The employer, on the other hand, argued that its e-mail system is private property, no different from other equipment it has purchased, that it had the right to regulate and restrict its use and that there was no protected right for employees to use an employer’s e-mail system for nonbusiness purposes. Adhering to ‘Perry’ would favor employer’s position Employees would appear to have no right to use their employer’s e-mail system to communicate with other employees about union activity because, as per Container Corp. of America, there is no right to use any employer property such as telephones, copy machines and bulletin boards for communication purposes. Although the board has traditionally found that an employer has acted unlawfully if it permits nonjob-related communications but not these related to the union, it can be argued that permitting such activities as employee solicitation for Girl Scout cookies, etc., are “beneficial to all employees,” while union solicitations are much more disruptive to the workplace. The board has been conspicuously silent about the high court’s Perry decision and does not attempt to reconcile it with its broad view of unlawful discrimination. In this regard, it can be argued that, consistent with Perry and certain circuit courts, unlawful discrimination should be limited to discrimination among comparable activities; e-mail communications for charitable, civic and even commercial purposes are not comparable to union activities because such actions are beneficial to all employees and are less disruptive to the workplace than union activities; and therefore, allowing such nonbusiness-related e-mail communications while banning union e-mails should not be found unlawful discrimination. As the Supreme Court in Perry found no unlawful discrimination against banning union communications while permitting other types of nonbusiness-related communications, so too, unlawful discrimination in this context could be limited to situations in which employers apply a communications ban disparately against one union but not another, or allow employee anti-union-related communications, while prohibiting employee pro-union-related communications. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw.

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