OFFICE OF THE GENERAL COUNSEL
MEMORANDUM GC 08-07 May
15, 2008
TO: All Division Heads, Regional Directors,
Officers-in-Charge, and Resident Officers
FROM: Ronald Meisburg, General Counsel
SUBJECT: Report on Case Developments
Attached
is a report on case developments in the Office of the General Counsel involving
the decision in The Guard Publishing Company, d/b/a The Register Guard,
351 NLRB No. 70 (2007).
/s/
R.M.
cc: NLRBU
Released to the Public
MEMORANDUM GC 08-07
Report of the General Counsel
During
my term as General Counsel, I have pledged to keep the labor-management
community fully aware of the case handling policies of my office. It is my hope that this transparency will
encourage compliance with the Act and cooperation with Agency personnel. Consistent with this goal, I have continued
the practice of issuing periodic reports of my decisions on significant legal
or policy issues.
This
particular report discusses cases in which my office addressed various issues
arising out of the Board’s recent decision in The Guard Publishing Company,
d/b/a The Register Guard, 351 NLRB No. 70 (2007). My
contacts with practitioners around the country in the months since the Register
Guard decision has evidenced a particularly high interest in the position
that my office will be taking in post Register Guard cases. For this reason, the subject warrants
expanded coverage in a report and I hope that it will provide valuable
assistance to the labor law community.
___________/s/______________
Ronald
Meisburg
General
Counsel
The Register Guard Decision
In Register
Guard, the Board, in a 3-2 decision, found that an employer did not violate
8(a)(1) of the Act by maintaining a policy prohibiting the use of the
employer’s e-mail system for all “non-job-related solicitations”, which
encompassed Section 7 activity.
The
Board majority held that an employer’s e-mail system is company property and
“employees have no statutory right to use [the company’s] e-mail system for
Section 7 purposes.”
The
decision also modified extant Board law on what constitutes discriminatory
enforcement by adopting the analysis of the 7th Circuit in Fleming
Co.[1]
and Guardian Industries[2],
cases in which that circuit distinguished between personal, non-work-related
postings on a bulletin board, such as for sale notices and wedding
announcements, and group or organizational postings such as union
materials.
The
Board majority found that the 7th Circuit’s analysis better reflected
the principle that discrimination means the unequal treatment of equals.
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.
Thus,
although the employer permitted personal e-mail solicitation, the employer had
not permitted e-mails soliciting support for any outside group or organization
in the past. The Board viewed the union
as an outside organization and determined that the employer lawfully enforced
its policy against two e-mails by an employee that solicited support for the
union was lawful.
After
issuance of Register Guard, I directed all Regional Offices to submit discrimination
cases related to the decision to the Division of Advice in order to assure a
consistent approach to the interpretation of that decision. There have been five cases submitted thus
far.
Case
1
Applying
the Board’s decision in Register Guard, we decided that an employer’s
rule which barred union officials from sending e-mails to company managers
outside of the facility to be lawful.
The
employer and the union have a long-standing bargaining relationship at the
facility at issue. The employer has
allowed the union to use the company’s e-mail system to conduct union business
and to communicate with the employer about labor relation matters at the
facility.
Recently,
the employer sent a letter to the union stating that it had knowledge that the
union was inappropriately using the company’s e-mail system by sending broadly
distributed e-mails to company managers outside the facility. The letter cautioned that sending these sorts
of e-mails may result in immediate suspension of [the union’s] e-mail
account.
Thereafter,
the union informed the employer that it would try to keep local issues in the
plant and not send single issue e-mails to more than one manager if the
employer rescinded the aforementioned letter.
The
employer refused to rescind the letter, and instead, sent the union another
letter reiterating its concerns.
We
found the rule to be lawful because it concerned how the union was permitted to
use the employer’s e-mail system and did not otherwise prohibit the union from
engaging in protected communications outside the plant or to broad groups of
managers.
Since
the rule solely involved company equipment, and did not discriminate against
union or Section 7 activity, it was considered lawful.
Case
2
In
this case, we concluded that the Register Guard decision does not
present any bar to issuing a complaint alleging that the employer, a health
care institution, discriminatorily enforced a facially valid no-solicitation
rule.
Specifically,
before and after the union’s organizing campaign began, the employer maintained
a no solicitation rule which, on its face, prohibits solicitation for any
purpose during working time and in immediate patient care areas.
The
investigation revealed, however, that the employer was inconsistent with its enforcement
of this policy. For example, the
employer warned and/or disciplined employees engaged in union solicitation
activity. Yet it allowed
non-union-related solicitation, including: institutional commercial
solicitations (sales of
In Register
Guard, the Board majority noted that the employer at issue in that case had
permitted a variety of personal, non-work related e-mails, but had not
permitted e-mails to solicit support for any group or organization. Thus, the Board said that the employer’s
enforcement of its policy regarding an employee’s e-mails soliciting union
support did not discriminate along Section 7 lines.
In
the instant case, unlike in Register Guard, the employer allowed
solicitations for a variety of groups and organizations other than the
union. Given its permission for these
solicitations, we found that the employer acted discriminatorily by prohibiting
union-related solicitation.
Further,
there were other Section 8(a)(1) and (3) violations alleged, which, if found,
would indicate that the employer’s motive in prohibiting the solicitations was
anti-union. Thus, even if the employer
made this distinction, its policy would be unlawful under Register Guard.
Case
3
In a
similar case, we decided that the Register Guard decision does not bar a
complaint alleging that the employer discriminatorily re-promulgated and disparately
enforced an otherwise valid rule prohibiting non-business e-mail
communications.
In
this case, an employee sent e-mails about an off-site union organizing meeting
to 20 other employees. Prior to sending
the e-mail, the employee asked the employer’s IT Director what was considered
abuse of the employer’s computer system.
The IT Director did not mention e-mails, but did discuss Internet abuse
in response to the question. Further,
the IT Director stated that personal use of the computer was allowed in
non-patient areas during non-work time, but clarified that, if employees really
had to, occasional use during work time in a patient area would be permitted.
After
sending the above-referenced e-mail communication about the union meeting, the
employee received a written warning for using the e-mail system for
solicitation purposes in violation of handbook provisions which state that the
employer’s e-mail system is intended for reasonable and responsible business
purposes and is not intended for personal use, and that employees may not
solicit during working time for any purpose.
The
investigation revealed that the decision to discipline the employee was content
based. Specifically, there was evidence
that the employee was disciplined because of the employee’s union activity and
to chill other employees from engaging in union activity. Further, the evidence established that the
managers, supervisors, and other employees frequently sent non-work related
e-mails while at work and during working times, both before and after the
discipline issued. Such e-mails included
chain letters, jokes, and party invitations, as well as non-business related
solicitations for cosmetics and candies.
The
case settled when the employer agreed that it would not:
(1) discipline employees
because of their membership in, activities in support of, or affiliation with a
union; (2) in response to employees’ union activity, enforce a previously
un-enforced rule that prohibits employees from communicating via e-mail about
non-work matters; and (3) prohibit employees from sending e-mails or soliciting
other employees about unions during working time, while permitting e-mails and
solicitations about other non-work matters during working time.
Within
a few months of approval of the settlement agreement, the employer disciplined
the same employee for sending another e-mail with union-related content.
Using
the Register Guard analysis, we decided that complaint should issue
since the evidence showed that the employer re-promulgated its e-mail rule for
anti-union reasons, and discriminatorily enforced the rule against Section 7
activity.
Specifically,
the Board majority in Register Guard noted that “if the evidence showed
that the employer’s motive for the line-drawing was antiunion, then the action
would be unlawful”. Further, the Board
made it clear that it was not altering well-established principles prohibiting
employer rules that discriminate against Section 7 activity.
In
the instant case, the evidence established anti-union motivation (the reasons
for the discipline were to retaliate against the employee’s union activity and
to chill other employees from engaging in union activity). Further, evidence demonstrated a
discriminatory prohibition of union-related solicitations (the employer allowed
all kinds of other e-mail communications before and after the employee’s discipline).
We concluded
that the discriminatory conduct in this case is similar to Salmon Run
Shopping Center, 348 NLRB No. 31 (2006), a case cited approvingly in Register
Guard and in which the Board found an employer’s decision to deny the union
access unlawful since it was based “solely on the union’s status as a labor
organization and its desire to engage in labor-related speech”.
Case
4
We
decided in another case that an employer discriminatorily enforced its
electronic communications policy, unlawfully discharged an employee in reliance
on that policy, and unlawfully discharged a supervisor for refusing to engage
in related unfair labor practices.
In
this particular case, the employer is an organization of medical professionals,
which is governed by a Board of Directors (the executive body) and a House of
Delegates (the legislative body) and is managed by an Executive Director.
For
several months in early 2006, the employer’s employees voiced frustration with
certain working conditions, including but not limited to perceived issues
of: disparate discipline of staff
members, unsafe working conditions, and unfair implementation of a paid time
off policy. They were also dissatisfied
with what they viewed as management’s failure to respond to these concerns and with
the lack of a proper reporting procedure.
After
learning that a House of Delegates representative was sympathetic to their concerns,
one employee, on behalf of a group of employees, sent e-mails seeking assistance
in presenting an employee petition to the Board of Directors and the House of
Delegates about their concerns. The
petition sought the ability to voice employee concerns to an impartial outside
source, free from retaliation or repercussion.
Thereafter,
the House of Delegates representative broached this subject at an annual
meeting and sought a resolution for adopting an employee complaint procedure. This resolution was voted down by the House
of Delegates.
The employee
then anonymously e-mailed the employee petition directly to the Board of
Directors. Thereafter, the Executive
Director initiated an investigation to determine which employee(s) were behind
the communications because she felt that they were disruptive to the
business. The Executive Director also
asked all staff members to report to her any involvement in the communications,
noting that she planned to discharge anyone that did not comply with her
instructions since compliance was a condition of their employment.
The employer’s
investigation revealed the identity of the employee who had sent the petition
to the Board of Directors and the fact that a particular supervisor had known
of the employees’ intent to send these communications.
In
August 2006, with the Board of Directors approval, the Executive Director
discharged the employee for insubordination for: participating in the “anonymous e-mail
scheme”, ignoring instructions to come forward with this information,
inappropriately using the employer’s computers in violation of its policy, and
acting outside the scope of responsibilities.
The
Executive Director also discharged the supervisor for insubordination because
he failed to disclose knowledge of the e-mail communications and their
authors.
We concluded
that the employer unlawfully discharged the employee for engaging in protected
concerted activities when seeking the support of the employer’s governing
bodies in addressing working conditions.
We considered
that concerted employee protests of supervisory conduct that affects employee working
conditions are protected under Section 7 of the Act[3]
and did not lose that protection when employees reach outside an employer’s
“chain of command” to higher levels of management.[4]
Further,
we noted that when employee conduct attempts to influence both the employer’s
management of its enterprise and terms and conditions of employment, the Board
discerns the primary thrust of the activity and the extent of the relationship
between the challenged management policy and employee working conditions.[5]
In
the instant case, the primary thrust of the employee’s e-mail was to enlist
support of the Board of Directors and House of Delegates to improve employee
working conditions. Further, the
evidence demonstrated that the employees enlisted this support because the
Executive Director refused to previously address them.
In
finding the employee’s discharge unlawful, we concluded that the employer’s stated
reason for his discharge – the e-mail had a disruptive effect on operations –
not to be supported by the evidence.
Further, with regard to the employer’s claim of insubordination, we
concluded that an employer may not rely on an employee’s failure to adhere to a
rule that prohibits protected activity as a basis for discipline.[6]
We
rejected the employer’s defense that the employee had improperly used its
e-mail system. The employer’s e-mail
policy allowed reasonable personal use of the employer’s computer and the
employer permitted employees’ extensive use of the internet, e-mail and other
company equipment for their personal purposes.
Thus, the employer disparately enforced its e-mail policy against
protected concerted activity.
Using
the 7th Circuit’s discrimination analysis adopted by the Board’s
decision in Register Guard, the evidence demonstrated that the employer
had not drawn a meaningful distinction between employee e-mails that it permits
(jokes, baby announcements, offers of sports tickets) and those that it
prohibits (Section 7 content).
In
addition, while the Board in Register Guard suggested that employers can
lawfully distinguish between “solicitations” and “non-solicitations”, we found
that the discharged employee’s e-mails were not solicitations because they did
not call for employees to take action in support of an outside organization or
cause. Rather, they were direct communications
to management seeking improvement in working conditions.
Hence,
we determined that these e-mails were more job-related than the personal
e-mails that the employer permitted. Based
thereon, the discharge was unlawful because it was based on the employer’s
discriminatory enforcement of its e-mail policy.
Finally,
we determined that the employer unlawfully discharged the supervisor for
refusing to commit an unfair labor practice of informing the Executive Director
about who engaged in the protected activity of participating in the e-mail
communications at issue.
Case
5
In a
fifth case, we decided that a previously-issued complaint should continue to
allege that the employer discriminatorily prohibited use of its employee
bulletin board to post union information since the facts were clearly
distinguishable from those in Register Guard. The evidence revealed that the change in the
employer’s bulletin board policy was in direct response to union activities at
the facility.
The
primary employee organizer led a delegation of union supporters into a
particular store of the employer. The
group handed the store manager a letter containing an announcement of the
formation of the union at that store, together with a written list of demands
regarding wages and working conditions, on behalf of the union. Simultaneously, other union members and
supporters distributed union leaflets outside of the entrance of the store.
At the time of this event, the employer maintained two
bulletin boards. One was used for
official employer announcements and the second was used by employees for all
types of personal or general non-work-related matters, such as anti-war protest
march and party announcements (the employee bulletin board). The employer does not have any written
policy in its handbook or employee guide concerning the use of these bulletin
boards.
The
day after the aforementioned event, the primary union supporter posted on the employee
bulletin board the list of demands that had been given to the store
manager. He also posted the union
leaflet that had been distributed.
The letter
and leaflet were removed, yet other personal announcements remained. The employee re-posted the letter and
leaflet. When he noticed that this
re-posting had been removed, he posted another union related document on the
bulletin board.
Thereafter,
he noticed that all items that had been previously posted on the general employee
bulletin board had been removed and employer materials were now posted
there. The union organizer asked the
store manager about this change. In
response, the store manager informed him that employees were no longer allowed
to post anything on the employee bulletin board.
We
concluded that the facts established an anti-union motive as the timing of the
employer’s conduct and the actions themselves were directly in response to the
union activity described above.
Moreover,
we determined that the instant case was dissimilar to Register Guard in
that there was no disparate enforcement of a written company-wide policy with
facially neutral language at issue.
Instead, there was an unwritten policy at this particular store that was
abruptly changed in response to union activities.
We
concluded that use of this type of evidence showing anti-union motive is not
dependent on Board holdings reversed by Register Guard. Instead, this evidence supports the theory
that the employer directly targeted the union and its members and supporters at
the store in question and other stores.
Summary
The
post Register Guard cases submitted to Advice thus far have given us the
opportunity to apply those principles set forth in Register Guard in a
variety of factual settings. We have
concluded that if an employer permits a union representing its employees to use
the employer’s e-mail system, it can place reasonable limits on that use. We have also seen cases where an otherwise
valid rule was promulgated for anti-union reasons, a situation that Register
Guard specifically found to be unlawful.
Finally, we have dealt with a case that did not involve solicitation,
but rather, a direct communication with management seeking improvement in
working conditions. We are continuing to
bring Register Guard cases to Advice to assure a consistent approach to
our casehandling.
[1] 349 F.3d 2968 (7th Cir. 2003), denying enf. 336 NLRB 192 (2001).
[2] 49 F.3d 317 (7th Cir. 1995), denying enf. 313 NLRB 1275 (1994).
[3] Trompler, Inc, 335 NLRB 478 (2001); Millcraft Furniture Co., 282 NLRB 593 (1987).
[4] Oakes Machine Corp., 288 NRLB 456 (1988), enfd. in relevant part 897 F.2d 84 (2d Cir. 1990); Memphis Chair Co., 191 NLRB 713 (1971).
[5] Oakes Machine Corp., 288 NLRB at 456. See also, Mitchell Manuals, Inc., 280 NLRB 230 (1986).
[6]