NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
September 10, 2007
DECISION AND ORDER
By Members Liebman, Kirsanow, and Walsh
On December 23, 2002,
Administrative Law Judge Clifford H. Anderson issued the attached
decision. The Respondent filed
exceptions and a supporting brief, the General Counsel and Charging Party each
filed an answering brief, and the Respondent filed a reply brief.[1]
The National Labor
Relations Board has delegated its authority in this proceeding to a
three-member panel.
The Board has considered
the decision and the record in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,[2]
and conclusions[3] and to
adopt the recommended Order as modified and set forth in full below.[4]
We agree with the judge
that the Respondent violated Section 8(a)(5) and (1) by implementing a revised
e-mail policy on June 13, 2001, without reaching agreement or impasse with the
The Respondent contends
that if the June 13 policy is rescinded the January 1, 2001 e-mail policy will
remain in effect. We agree. To find otherwise would amount to a de facto
rescission of the January 1 policy, the legality of which is not before
us. The judge found that there were two
policies: one announced in January and another
announced in June. Only the June 13
policy was alleged to be unlawful in the complaint. Indeed, in his answering brief, the General
Counsel acknowledges that “[a]t no time did the General Counsel plead, allege,
or put on trial the lawfulness of anything other than the June 13 e-mail
policy.” Furthermore, the General
Counsel’s witnesses conceded that the January 1 policy was never withdrawn. The Respondent did hold the January policy in
abeyance during the first few months of 2001, but notified the
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge as
modified and set forth in full below and orders that the Respondent, California
Newspapers Partnership d/b/a ANG Newspapers, San Francisco Bay Area,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing an e-mail
policy applying to unit members without reaching an impasse in bargaining or
obtaining the consent of the Northern California Media Workers
Guild/Typographical Union, Local #39521, TNG–CWA, AFL–CIO.
(b) In any like or related
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the
policies of the Act.
(a) Rescind the June 13,
2001 policy insofar as it applies to unit members’ e-mail use, and advise unit
employees, in writing, that those provisions of the policy are no longer being
maintained.
(b) Within 14 days from the date of this Order, remove from its files any
reference to the discipline of employees pursuant to the June 13, 2001 policy,
and within 3 days thereafter, notify the employees in writing that this has
been done and that the discipline will not be used against them in any way.
(c) Before implementing any changes in wages, hours, or other terms
and conditions of employment of unit employees, notify and, on request, bargain
collectively and in good faith to impasse or agreement with the Union as the
exclusive representative of the appropriate unit of employees described in the
parties’ settlement agreement executed by the Respondent on December 26, 2001,
and by the Union on February 7, 2002.
(d) Within 14 days after service by the Region, post at its facilities in
the San Francisco Bay Area,
(g) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
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Wilma B. Liebman, |
Member |
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Peter N. Kirsanow, |
Member |
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Dennis P. Walsh, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We are
obligated to bargain with a union that is our employees’ exclusive
representative for collective bargaining concerning wages, hours, and working
conditions. The term “working conditions” includes our rules and policies concerning
represented employees’ non-business use of our e-mail system. A prohibition on
represented employees sending personal e-mail messages to multiple
addressees—broadcast messaging–is such a rule.
When obligated
to bargain respecting a rule or policy, we may not legally implement a new
policy or change an existing policy unless: (1) we have reached agreement with
the labor organization representing the employees involved, (2) we have
bargained with the Union to an impasse, or (3) we have the permission of the
labor organization to implement the new policy or revised policy involved.
The Northern
California Media Workers Guild/Typographical Union, Local #39521, TNG–CWA, AFL–CIO
represents our employees in the unit
described in a settlement agreement between the Union and us, executed by us on
December 26, 2001, and by the
After a hearing
before an administrative law judge, the National Labor Relations Board found
that we violated Federal labor law when we improperly implemented an e-mail
policy on June 13, 2001, insofar as it applied to represented employees in the
bargaining unit described above, which prohibited employee use of our e-mail system
for nonbusiness multi-addressee or “broadcast” e-mails because we had not
reached an agreement or impasse with the Union in bargaining nor had we
obtained the Union’s permission to implement such a policy. The Board has required
us to post this notice and to honor its terms. Accordingly,
We give our
employees the following assurances.
We will not implement
an e-mail policy applying to unit members without reaching an impasse in bargaining
or obtaining the consent of the
We will not in any
like or related manner interfere with, restrain, or coercing you in the exercise
of the rights set forth above.
We will rescind the
June 13, 2001 policy insofar as it applies to unit members’ e-mail use, and
advise unit employees, in writing, that those provisions of the June 13, 2001
policy are no longer being maintained.
We will, within 14 days from the date of the Board’s Order, remove
from our files any reference to the discipline of employees pursuant to the
June 13, 2001 policy, and we will, within 3 days
thereafter, notify the employees in writing that this has been done and that
the discipline will not be used against them in any way.
We will, before
implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain collectively and
in good faith to impasse or agreement with the
d/b/a ANG Newspapers
Karen Reichmann, Esq., for the General Counsel.
Laurence R. Arnold, Esq. and Jennifer Ruskin, Esq. (Foley & Lardner), of
Derek J. Baxter, Esq. and Barbara L. Camens, Esq., with him on brief (Barr & Camens), of
DECISION
Statement of the Case
Clifford H. Anderson, Administrative
Law Judge. I heard the above-captioned case in trial in
The
complaint, as amended at the hearing, alleges and the answer denies, inter
alia, that the Respondent revised its e-mail policy without the consent or
agreement of the Union, the exclusive representative for collective bargaining of
a unit of the Respondent’s employees, thereby violating Section 8(a)(5) and (1)
of the Act. The complaint further alleges, and the answer denies, that the
Respondent informed a unit employee that the e-mail message the employee had
sent to other unit employees violated the Respondent’s revised e-mail policy
because the e-mail communication involved the Union in violation of Section
8(a)(3) and (1) of the Act.
On
the entire record, including helpful briefs from the Respondent, the Charging
Party, and the General Counsel, I make the following
Findings of Fact2
i. jurisdiction
The
Respondent is a
Based
on the above, there is no dispute and I find the Respondent is and has been at
all times material an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
ii. labor organization
The
record establishes there is no dispute, and I find the
iii. the alleged unfair labor
practices
A. Background
The
Respondent publishes five daily newspapers, one of which is the Oakland
Tribune, from various locations in the San Francisco Bay Area. The
The
Article V—Management Rights.
Section 2. The sole and exclusive rights of management which are not abridged by this Agreement shall include but are not limited to the following rights:
(a) To establish or continue policies, practices, and procedures for the conduct of the business and, from time to time, to change or abolish such policies, practices, or procedures.
. . . .
Section 4. The Company shall have the sole and exclusive right at any time to establish, abolish, or alter the practices or customs of break periods and telephone calls by employees and to limit or restrict such practices or customs as the Company may determine.
Article XXVIII—Waiver
Section 1. The parties hereto acknowledge that, during the negotiations which resulted in the Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to all proper subjects of collective bargaining; and all such subjects have been discussed and negotiated upon; and the agreements contained in this Agreement were arrived at after the free exercise of such rights and opportunities. Therefore, the Company and union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject matter not specifically referred to or covered in this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.
Electronic
mail, or e-mail, is an electronically transmitted communication, sent from one
e-mail address or account (address) to another address typically over a public
or private computer network. Initially rudimentary and uncommon in the previous
decade, it has rapidly evolved and matured and is increasingly common both
within commercial organizations on private or public networks and among members
of the national and international public generally transmitting communications
over the international public network referred to as the Internet.
E-mail
transmissions are usually available for retrieval by the addressee for a period
of time and once received may be stored on the receiving computer and may be
answered with simplicity. Using more modern e-mail systems, individual e-mail
communications may be sent to large numbers of addressees at one time. This is
sometimes referred to here as a multiple-addressee e-mail or a broadcast
e-mail. The ability to send large numbers of copies of e-mail messages to
others has become both an asset and a liability in the commercial world.
Senders may communicate a common message to a large group of e-mail addressees
who desire or require such communications significantly enhancing organizational
communication processes. Advertisers and others, however, may also send
unsolicited and often unwanted advertisements and other communications to a
very wide audience for very low cost burdening the communication networks involved
and maddening the e-mail addressees subject to such unwanted and seemingly
endless communications.
E-mail
communication, at least among those who regularly use computers is a means of
communication increasingly like the telephone in its convenience and ubiquity.
Employees who use the computers of their employer are frequently able to send
and receive e-mail communications for personal as well as business purposes.
Employers have in consequence established various rules respecting employee
e-mail use. There is no dispute that a rule respecting employee use of the
employer’s e-mail system, like a rule respecting employee use of employer
telephones, is a mandatory subject of bargaining.
The
Respondent has had an e-mail system of growing sophistication since the late
1990s, before the 1998 contract was entered into. During negotiations for the
1998 contract there were apparently no discussions whatsoever specifically addressing
employee e-mail use nor were there rules in place respecting such use. Unit
editorial and reporter employees have e-mail addresses provided by the
Respondent and have at all times used the e-mail communication process both for
business communication with other Respondent and public addressees and for
personal or nonbusiness communication.
B. Events
1. The circumstances
and events respecting the Respondent’s
e-mail rules
In
late 2000, the Respondent circulated among all its employees, including unit employees,
a memorandum entitled “ANG Newspapers Electronic Technology Policy”3 by its terms
effective on January 1, 2001. The memorandum contains a detailed set of rules
and provisions respecting use of both personal and business e-mail including
the following provisions:
Failure to abide by
any or all provisions of this policy will subject the offender to disciplinary
action up to and including immediate termination of employment. Anyone who
feels he or she is being or has been unfairly treated under this policy and its
enforcement may seek redress through the company’s Fair Treatment Policy.
The
memorandum further provides:
E-mail may not be
used for unauthorized broadcast messages or solicitations. A broadcast message
or solicitation is one where there is greater than one addressee.
The
memorandum at its conclusion provides signature lines for the individual
receiving employee to sign in acknowledgement that the employee had read and
understood the policy, agreed to abide by its terms and further provided space
for the employee’s signature to be witnessed by a superior who also signed in
the provided space.
There
is no dispute the policy was written and circulated by the Respondent as a
policy that would go into effect on January 1, without notification to or
bargaining with the
As you know, recently ANG issued an “Electronic Technology” Policy to all of its employees. Inadvertently and regrettably, I failed to send you a copy in advance. I wanted you to know it was not intentional and I apologize for any inconvenience this oversight may have caused.
As you know, ANG has had guidelines for email, telephone
and Internet use for sometime. This written policy was drafted essentially from
the one in use at the Denver Post and is consistent with our past practices. It
has been distributed to all newspapers in
As always if you
have questions, I would be glad to discuss any part of the policy with you. I
will fax a copy of the policy to you this afternoon.
Erin Poh
testified that after she received the e-mail communication and the policy she
contacted Jendusa. She recalled she,
Told him that I believed that the policy had some problems. And we were concerned with the fact that members were being asked to sign that they would—that they would obey the policy. That we had not discussed any kind of electronic technology policy, and that we needed to sit down and discuss it. And I asked him also to please stop circulating and asking employees to sign the policy.
Q. And what did Mr. Jendusa say to you in response?
A. I believe that we said that we would get together and talk, and that was the end of the conversation.
Jendusa
testified that Poh never asked to bargain respecting the policy although she
did request that they “have lunch and discuss it.” He further recalled that Poh
raised some “questions we needed to at least research.” Jendusa denied that the
Respondent withdrew the announced policy but rather testified that the
Respondent decided it would “back off” on the implementation of the policy.
Thus, Jendusa testified that in January through the beginning of April, the
policy was not “actively enforced” and employee-signed policy memoranda were
not systematically collected.
During this
period Poh and Jendusa communicate by telephone and by e-mail correspondence
about the matter. Poh testified that Jendusa made it clear to her that the Respondent
was not enforcing the policy, was not, as a matter of policy, asking employees
to sign copies of the policy and that the matter for the time being was on
hold. On April 19, Jendusa sent Poh a letter asserting that the contract’s management’s
rights provisions gave the Respondent the right to formulate and implement the
policy and that the
On April
27, Poh and Jendusa met over lunch and discussed the policy and the
Respondent’s intentions. The
On May 8,
Jendusa sent a letter to Poh following up on the meeting and discussions of
April 27. The letter disagreed with the position of the Union respecting the
impropriety of the policy under Board law, clarified aspects of the policy
respecting unit member grieving of the policy’s discipline and generally
supported the Respondent’s view the rule was necessary and proper.
The May 8
letter concluded:
We, are, however, reviewing the policy to determine if
there are any changes that we might want to make in light of the concerns you
expressed as well as certain issues were identified for further discussion
during our review. If we find that changes are appropriate or necessary, we
will review the policy accordingly, and I will advise you of the changes as a
courtesy to you and the
Poh
responded by letter to Jendusa, dated May 14, demanding the Respondent remove
the policy’s prohibition of employee email broadcast messages or solicitations.
By early June, in response to inquiry by Poh, Jendusa informed Poh the
Respondent’s determination on the specifics of the policy would soon be
forthcoming.
By letter
dated June 13, Jendusa informed Poh of a revised electronic technology policy
which, although modified in other particulars, retained the Respondent’s prohibition
of employee—including unit employee—nonbusiness e-mail multiple address or
broadcast communications or solicitations. The letter attached the revised
policy which states it is effective January 2001 and which retains the space at
the bottom of the final page as earlier described respecting the original
printed police for a “read, understand, and abide certification” and space for
both employee and witness signatures.
The revised
policy was soon distributed to employees and the
2. The events
respecting employee Robert Gammon
Robert
Gammon is a unit employee and reporter at the Respondent’s
I believe [Dianda] said something like be more discreet or something like that, or don’t—this shouldn’t happen again. Something along those lines.
Gammon
demurred stating that he thought that only unsolicited multiple addressee
e-mails were prohibited and that his e-mail had been requested by the
recipients to which Dianda responded he did not know the answer to Gammon’s question,
and that he would get it clarified.
A few
days later, Jendusa spoke to Gammon and told Gammon in his recollection “that
any e-mail that goes to more than one person that’s not authorized by the
Employer is a violation of the Employer’s e-mail policy.” This was the only
occasion that Gammon recalled in which Jendusa had ever approached him and
discussed work rules.
Other
employees in May and June were told not to send broadcast e-mail or counseled
by supervision respecting their sending multiple addressee nonbusiness e-mails
and similar instruction of employees has occurred since. Other instances of
employee violations of the policy were established as having occurred during
this period. Thus, some personal broadcast e-mails were sent by employees to members
of the Respondent’s supervisory staff without action being taken against them.
There was no evidence that the human resources department or Jendusa was aware
of such communications without acting on them.
Jendusa
testified that the new e-mail policy was difficult to implement and was
resisted by many on the staff both non-supervisory and supervisory, unit and
non-unit members. He lamented that the policy raised many questions and that
because of the multilocation organization of the Respondent’s operations the
policy was difficult to enforce.
C. Analysis and
Conclusions
1. The 8(a)(5)
allegations
The
complaint alleges at paragraphs 10(a), 10(c), and 13 that the Respondent’s
implementation of its “revised” policy regarding the use of its electronic
(e-mail) system on or about June 13, was undertaken without the consent or
agreement of the Union and therefore violated Section 8(a)(5) and (1) of the
Act.
a. The argument of the parties
The
General Counsel and the Charging Party argue that there is no dispute that the
Respondent’s policies respecting employee e-mail use are mandatory subjects of
bargaining, that the Respondent issued a revised policy respecting those
matters on June 13, which applied to unit employees, and that it did so without
either reaching an impasse in bargaining with the Union respecting the policy
or obtaining the Union’s agreement or consent to the implementation. Thus,
argue the General Counsel and the Charging Party, the record establishes a
clear prima facie unilateral change violation of Section 8(a)(5) of the Act.
The
Respondent does not directly dispute the prima facie elements alleged by the
government as described above, but rather asserts the Union bargaining rights
respecting the policy had been waived both by delay in filing the charge and by
virtue of the terms of the contract. Thus, the Respondent argues that the
allegations of the complaint are untimely and precluded by the time limitations
contained in Section 10(b) of the Act. Further it argues that the Respondent
was not obligated to bargain respecting the policy due to the management-rights
and waiver or zipper clauses of the contract. The Charging Party and the General
Counsel dispute these contentions.
b. The issue of the statutory limitation of Section 10(b)
of the Act
Affirmative
defenses raising a time bar under Section 10(b)4 of the
Act are addressed first in any consideration of the complaint allegations for,
if the defense is sustained, no further consideration of the time barred
allegations is appropriate. And, at the threshold of considering a statute of
limitations argument, the timeliness of that argument itself is properly addressed.
The
General Counsel on brief at 7, fn. 4, argues the Respondent is foreclosed from
raising a 10(b) argument:
Any argument by [the] Respondent that the complaint is barred by Section 10(b) [of the Act] because the Policy was in force prior to the June distribution must be rejected because [the] Respondent neither raised this defense in its pleading nor litigated it at the hearing. See, e.g., Laborers’ Union Local No. 324, 318 NLRB 589 (1995); Christopher Street Owners Corp., 286 NLRB 253 (1987).
The
Charging Party on brief argues that the Respondent failed to raise a 10(b)
defense in its pleadings or at the hearing and such a defense is precluded if
asserted for the first time in a post-hearing brief citing, Newspaper & Mail Delivers (New York
Post), 337 NLRB 608 (2002).
The cases cited
are current and on point. The Respondent did not raise this defense in its
pleadings or at the hearing, doing so on this record for the first time in its
post-hearing brief. Accordingly I find the Respondent’s 10(b) defense is precluded
as untimely raised.
c. The contract defenses5
(1) The management-rights clause
Relevant portions
of the agreement’s article V—management-rights provisions are quoted supra. The
agreement was in force and effect during the relevant period. The Respondent
argues that with respect to any right the
[I]t exercised that
right instead by agreeing during bargaining that [the] Respondent has the sole
and exclusive right to establish, amend and discontinue rules of conduct and
operating policies, generally, so long as the rules or policies did not conflict
with an express term of the Agreement. [R. Br. at 15.]
The General
Counsel makes several answering arguments. First, counsel for the government
argues that a general management-rights clause, as presented here, which refers
simply to the right of the Respondent to promulgate “rules” is simply too
general in its language to constitute a waiver of a labor organization’s
bargaining rights over rules which are backed up with discipline such as are
involved, herein, citing Dorsey Trailers, Inc., 327 NLRB 835 (1999). Second, counsel argues
that the negotiating parties could not have had e-mail rules in mind when the
management-rights contract language was agreed to because the date of that
agreement preceded the Respondent’s introduction of e-mail in the workplace.
These circumstances, counsel argues, make it clear that the contract does not
provide the “clear and unmistakable waiver” of the right to bargain respecting
employee e-mail use required by the Board.
The Charging
Party argues in similar fashion. It notes that the Board in Klein Tools, 319 NLRB 674, 687 (1995), refused to find
waiver based on “strikingly similar” contract language. The Charging Party also
notes that the contract language in article V,
section 4, deals with telephone calls and not with e-mail messages.
The
General Counsel and the Charging Party’s cases are on point. It is clear that
the contract language invoked as a defense by the Respondent, in light of the
general language involved, the timing of the contract language agreement, and
the nature of the technology policy with its potential disciplinary action
against employees for e-mail utilization violations, did not and does not act
to waive the Union’s bargaining rights over the rule or the subject of employee
personal e-mail use. Accordingly, I reject the Respondent’s argument that the
contract’s managements-rights language constitutes a waiver of the
(2) The zipper clause
The
language of the agreement’s article XXVIII is quoted supra. The clause, of the
type commonly referred to as a “zipper clause,” purports by its terms to
conclude bargaining respecting “all proper subjects of bargaining” including,
[A]ny subject matter not specifically referred to or covered in the Agreement, even though such subject matter may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.
The
Respondent argues that this contract language acts to end the Union’s
bargaining rights respecting unnamed topics and that, if it be argued by the government
that the e-mail use was not covered by the management-rights clause, it is
still included in the agreement under the language quoted above, and in consequence
the Union waived its bargaining rights respecting the policy.
The
General Counsel responds on brief at 7 that the Board holds that a generally
worded “zipper” clause does not create a waiver of a labor organization’s
bargaining rights citing Trojan Yacht, 319 NLRB 741 (1995); Johnson-Bateman, 295 NLRB 180, 184 (1989); and Suffolk Child Development Center, 277 NLRB
1345, 1350 (1985). The General Counsel argues
that for a waiver of bargaining rights to be found, the subject matter at issue
must have been “fully discussed and explicitly explored during the negotiations
citing Rockwell International Corp., 260 NLRB
1346 (1983). Since there is no record
evidence that employee personal e-mail use was ever discussed or considered
during bargaining at all, let alone with respect to any contract language,
there can be no finding of waiver of any union bargain rights. The Charging
Party adds that, as with management-rights clauses, the Board requires waivers
in zipper clauses to be “clear and unmistakable” holding generally worded
zipper clauses do not constitute waivers of statutory bargaining rights.
Again
the General Counsel and the Charging Party’s cases are on point. It is clear
and I find that the contract zipper clause on this record and under the cases cited
did and does not act to waive the
d. Other waiver contentions
Although
the parties generally argued the waiver theories specifically discussed above,
various collateral arguments were made that are appropriately addressed here.
First, the parties argued the events of January through June 13. Thus, the Respondent
argued, and the General Counsel and the Charging Party opposed the argument,
that: (1) the Union did not seek or in fact engage in bargaining respecting the
January 1 policy, (2) that the January 1 policy was never withdrawn or rescinded
prior to its June 13 revision, and (3) that the Union well knew or should have
known of these facts. From these assertions the Respondent argues—to a degree
separate from the other arguments discussed in this decision—that the Union’s
actions and inactions as advanced by the Respondent diminish or waive any
rights the Union might otherwise have had to bargain respecting the e-mail
policy involved herein.
I
find that there is no question that the
I
also find that, contrary to the argument of the Respondent, the Union had a
reasonable basis for belief and, crediting the testimony of Poh whose demeanor
on the matter was persuasive, in fact had the belief that the Respondent had
agreed to consider the Union’s views and had in fact “backed off” its policy
pending consideration of issues raised by the Union. I reach this conclusion
based on the evidence set forth above respecting the statements of the Respondent
to the
I do
not find the fact that the Respondent’s human resources department was acting
to the extent described above in April and May to discourage employee broadcast
e-mail communications which were in violation of the January 1 policy was or
should have been known to the Union in manner sufficient to put them on notice
the policy was being enforced at that time. The enforcement of the rule during
this period was simply not so public or open as to put the
All
of the above arguments were asserted in part because of the argument that the
complaint is foreclosed by operation of the 6-month time limitations of Section
10(b) of the Act. My findings in the paragraphs immediately above would also
have had bearing on a 10(b) analysis, had I not determined that such an
analysis was unnecessary because the argument was untimely raised as discussed,
supra. These arguments were also made in support of a general theory of waiver
or latches respecting the
Finally,
I have considered and reject for the reasons noted above, the Respondent’s
argument that the policy was seamlessly applied and was never withdrawn or held
in abeyance, but rather was only revised in June. Rather, I find that there
were in effect two policies, one that was announced shortly before and commenced
in January 2001 and came to be held in at least partial and apparent abeyance
by the Respondent and the second, the June 13 policy, which was implemented on
June 13 simultaneously with its announcement.
e. Conclusions
respecting the June 13 unit employee
e-mail rule
I
have found that the Respondent implemented a rule applicable to represented
unit employees respecting a mandatory subject of bargaining without reaching an
impasse in bargaining with the Union or obtaining the agreement of the
f. The
application of the rule to employees including
employee Gammons
There
is no doubt that the January unit employee e-mail rule was applied to certain employees
in April and May. Since the time limitations of Section 10(b) of the Act have
not been applied to this case because they were not timely raised by the
Respondent, may these applications of the rule be found a violation of the Act or should
they be rescinded in any remedy directed, infra. On this record and in particular
because the General Counsel’s complaint and counsel for the General Counsel’s
arguments at trial and on brief were limited to an attack on the June 13
revised policy, I find that the record application of the earlier January 1
rule to certain unit employees may not properly constitute a violation of the
Act nor may those applications of the rule be addressed in any manner as part
of the remedy directed toward the unfair labor practice of the unilateral application
of the June 13 revised policy. I find therefore that these pre-June 13
applications of the rule to employees need not and shall not be further
addressed.
There
is also no dispute that the June 13 unit employee e-mail rule was applied to
employee Gammon and to others. Since the rule was implemented in violation of
Section 8(a)(5) of the Act, the application of the rule to Gammon and others
after its wrongful implementation on June 13 is a further aspect and
consequence of the wrongful implementation of the rule and I so find. Is each
application of the rule after June 13 an additional violation of the Act? The
complaint did not allege the application of the rule to Gammon as a further
violation of Section 8(a)(5) of the Act. In colloquy at trial the General
Counsel reaffirmed the government’s intention to treat the allegations of
Section 8(a)(3) and (5) independently. The Gammon matter was alleged only as a
violation of Section 8(a)(3) and (1) of the Act. Given this context, I decline
to find the application of the invalid rule to Gammon and others after June 13,
were separate violations of Section 8(a)(5) of the Act. The remedy portion of
this decision, however, addresses the Gammon situation and other post-June 13
applications of the rule as part of the remedy of the 8(a)(5) violation found.
See discussion infra.
2. The 8(a)(3)
allegation
The
complaint alleges that the Respondent violated Section 8(a)(3) and (1) by
informing employee Gammon, a unit employee, that the e-mail he sent to other
unit employees violated the Respondent’s e-mail policy. The allegation is
legally separate from the 8(a)(5) allegations and findings above. As noted,
above, the complaint does not allege the conduct discussed herein as a
violation of Section 8(a)(5) of the Act.
a. The
contention that employee gammon was singled out due to union activity
The
General Counsel and the Charging Party argue the Respondent’s policy was
disparately enforced against Gammons because the e-mail communication involved
was, in effect, “union business” and hence sending the e-mail was union and
protected concerted activity. Thus, the General Counsel and the Charging Party argue
that only Gammon received a verbal correction from Jendusa after being
initially instructed by Editor Dianda when the other employees whose e-mails
were known to have violated the policy did not receive such official treatment.
Thus, the General Counsel argues on brief at 8: “[The] Respondent singled out
Gammon for reprimand despite the fact that there were widespread violations of
the Policy.” And counsel argues further on brief at 9: “The evidence leads to
the conclusion that Gammon, a known Union activist, was singled out for
reprimand in retaliation for his protected activity.”
The
Respondent disputes these contentions arguing that Gammon was simply treated
like other employees whose e-mails came to management’s attention with two
benign exceptions. First, Gammon was spoken to twice by Respondent’s agents
simply because he raised a question concerning the policy’s application to
sending multiple addressees information to addressees who had requested the
information. Editor Dianda—the first agent of the Respondent to speak to Gammon
on the matter—told Gammon he could not answer Gammon’s argument and would have
to get more information and get back to him. Gammon’s question and the
necessity that it be answered therefore required a second conversation with
Gammon by Dianda or some other agent of the Respondent who could answer the
policy question Gammon raised. That agent was Jendusa. Second, because the
e-mail was known by the Respondent to involve union matters, Jendusa wanted to
insure that Gammon understood the policy was being applied to him solely
because of the number of the addressees involved and not because of the “union
business” content of the particular e-mail involved.
I
have carefully considered the arguments of the parties in light of the record
as a whole and the demeanor of the witnesses, particularly of Jendusa in his
description of the events and his motivations. I credit Jendusa that his
motivation in talking to Gammon was prophylactic rather than disciplinary. I
further find the treatment of Gammon, even under his description of events,
does not persuasively suggest discriminatory application of the rule to
protected or union activities. Accordingly, I find there is insufficient
evidence on this record to sustain the burden the General Counsel bears to
establish the violation. Rather, I find that the Respondent acted in the circumstances
no differently than it would have had Gammon not been a known union official
and/or the e-mail had not involved union matters.
b. The
contention that the rule and its general application violated Section 8(a)(3)
of the Act
The
Charging Party makes a scholarly argument that an employer who allows his employees
to use its property for non-business purposes cannot discriminate against such
employee use involving union or protected concerted activities. The Charging
Party further argues in this case that prohibiting employee use of electronic
mail for distributing union material is impermissible independent of the issues
of a violation of Section 8(a)(5) of the Act. The Charging Party’s arguments in
these regards suggest that, irrespective of the bargaining issues litigated
under the complaints 8(a)(5) allegations and even if the Respondent’s e-mail
rule were uniformly applied to unit employees without focus on union or
protected activity communications, the rule would be invalid and itself an
unfair labor practice. Further, any application of the rule insofar as the Respondent
acted to restrict employee union activities would be an additional unfair labor
practice and the rule, as a matter of law, could never justify adverse action
against senders of multiple addressee e-mail communications respecting union
and or protected concerted activities. These arguments require a completely
different consideration and analysis and are essentially independent of the
factual issue of discriminatory enforcement and application of the rule.
The General Counsel, however, does not join in this per se argument advancing this theory of a violation. And, importantly, counsel for the General Counsel made it clear at the hearing that, although the General Counsel was considering advocating wider theories of vi