NLRB is ‘Rip Van Winkle’?

Labor board asleep to workers’ rights

Volume CVIII, No. 3March, 2008

Harvey S. Mars, Esq.

In a shocking decision that the two dissenting members of the National Labor Relations Board said confirmed “that the NLRB has become the ‘Rip Van Winkle’ of administrative agencies,” the labor board proclaimed on Dec. 16 that workers did not have a right to use their employers’ e-mail systems to communicate with one another. The case was Guard Publishing Company, d/b/a “The Register Guard” and Eugene Newspaper Guild, CWA Local 37194, 351 NLRB No. 70.

Joel LeFevre also wrote about this decision in his organizing column in last month’s Allegro.

Coupled with the board’s recent Dana opinion (which I wrote about in my December column), it is clear that organized labor has now been dealt two severe blows to its ability to maintain thriving organizational campaigns.

One can only hope that the inevitable backlash from these regressive decisions will prompt the necessary catalyst for reform.

In formulating its holding, the NLRB determined that employee use of the employer’s e-mail was comparable to employee use of employer bulletin boards or telephone systems and was subject to the same form of regulation that they were.

The NLRB has already held that an employer’s property interest in regulating its equipment or media outweighed its employees’ rights to engage in organizational activity so long as the regulation was non-discriminatory.

For instance, employees have no right to use an employer’s television to show a pro-union campaign video. Mid-Mountain Foods, 332 NLRB 229 (2000).

Nor does an employee or union have the right to use an employer’s bulletin board. Eaton Technologies, 32 NLRB 848 (1997).

Also, employers have an absolute right to restrict use of their phone systems to business purposes only. Churchill’s Supermarkets, 285 NLRB 138 (1987).

Likewise, the NLRB has now held that an employer’s e-mail system was no different than a phone or fax machine.

The practical effect of this decision is that employers may now completely ban employee use of company e-mail for any use other than for company business.

This ban, of course, includes use for union organization and collective bargaining.

However, if the employer maintains a so-called “discriminatory use” policy, then worker rights may indeed be violated.

For instance, if the employer permits personal use of e-mail except for union-related activities, then a violation of the National Labor Relations Act has occurred.

From this decision it is clear to see that the NLRB has failed to take account of the fact that e-mail is invariably the preferred means by which many individuals communicate.

To regulate e-mail communications — especially if the e-mail system is one maintained internally — is tantamount to barring all communications, since this is often the only means by which employees can communicate with one another.

In fact, the dissenting opinion in this decision likened the e-mail ban to a ban on all solicitations whatsoever. That kind of ban was also the issue in a 1945 case, Republic Aviation Corp., 324 U.S. 793 (1945).

In that case and others where an absolute ban is contemplated, the NLRB employs a balancing test that weighs heavily in favor of workers’ rights.

Employers will only be allowed to impede that right if they can demonstrate legitimate business reasons that justify interference.

The NLRB’s abject failure to recognize that e-mail has now become the “natural gathering place for employees to communicate in the workplace” and is not analogous to bulletin boards, photocopiers or other forms of company property (all of which may be legally regulated) demonstrates that the NLRB is gravely out of touch — intentionally perhaps — with how most employees presently conduct their lives.

Hopefully, this decision, along with others rendered by this demonstrably labor-hostile NLRB, will be purged when more enlightened members are appointed to the NLRB.

I, as well as many other proponents of organized labor, will be eagerly awaiting the results of this year’s election to see if the changes we all hope for will become a reality.

Harvey Mars is one of Local 802’s lawyers. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.