Jan 3, 2008

NLRP says union members cannot use employee provided email for union business

The National Labor Relations Board issued a ruling just before Christmas that will have a negative effect on union organizing by ruling that employers have the right to prohibit workers from using the company’s e-mail system to send out union-related messages.

The New York Times reported that in a 3-to-2 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.

Union organizers have limited access to workers; often reduced to passing out information to workers as they zoom out of employee parking lots with the windows of their cars rolled up in sharp contrast to employers who can make employees attend mandatory anti-union meetings.

“It will make it very difficult to get access to workers,” said Paul Hufnanagel, the president of the Greater Lansing Labor Council.

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.

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,” Jonathan Hiatt, general counsel for the A.F.L.-C.I.O, told the New York Times. “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.

Hufnanagel said it will have a very negative effect on anyone trying to organize private sector employers over public employees or even trying to negotiate a union contract.

“You have more access to those employees working in the public sector simply because they work in public buildings,” he said. “I come from the public sector, so I am aware of that.”

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.”

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.”

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