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E-mail Solicitation

E-mail Solicitation. Is an e-mail system employees’ “work area” in which ees may discuss unionization? employer equipment that employer may control for its own use?. E-Mail Policy.

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E-mail Solicitation

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  1. E-mail Solicitation • Is an e-mail system • employees’ “work area” in which ees may discuss unionization? • employer equipment that employer may control for its own use?

  2. E-Mail Policy • “Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications 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.”

  3. Chronology • May 4, 2000 email corrected an earlier e-mail sent by management regarding possible disturbances at a union rally • August 14, 2000 e-mail asked employees to wear green to work in a show of solidarity • August 18, 2000 e-mail asked employees to volunteer to participate in a parade • August 22, 2000 discipline for August e-mail messages reference May e-mail message • September 5, 2000 UFLP charge

  4. Compare Description of Facts Board Decision Court Decision “While Register-Guard employees used “e-mail regularly for work-related matters,” the Board found that: ‘Throughout the relevant time period, the [Register-Guard] was aware that employees also used e-mail to send and receive personal messages. The record contains evidence of e-mails such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.’ . . . Employees ‘sent and received e-mail … regarding parties, jokes, breaks, community events, sporting events, births, meeting for lunch, and poker games,” and did so’ without reprimand.” . . . Managing editor Dave Baker “admitted that he has received personal e-mail from … employees and has not disciplined them.” Id. Among other nonwork-related e-mails, Baker himself sent at least two e-mails seeking volunteers for the newspaper's annual United Way campaign.” • “The Respondent's employees use e-mail regularly for work-related matters. Throughout the relevant time period, the Respondent was aware that employees also used e-mail to send and receive personal messages. The record contains evidence of e-mails such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. However, there is no evidence that the employees used e-mail to solicit support for or participation in any outside cause or organization other than the United Way, for which the Respondent conducted a periodic charitable campaign.” (183 LRRM 1113 at 1115)

  5. Two Questions – First Question • Question. Is the policy itself unlawful under the NLRA? Does the policy constitute a violation of Section 8(a)(1) because it interferes with, restrains or coerces employees? • Answer - No. • Employees have no Section 7 to use an employer’s property for organizing and solicitation • Republic Aviation applies to “face-to-face” communication • Decision on policy not challenged at Court of Appeals level and therefore not considered

  6. Two Questions – Second Question • Question: Was the policy applied to union activity such that its application violated 8(a)(1) and 8(a)(3) • Answer: Yes

  7. May 4 “Correction” E-Mail • Board and Court: • E-mail did not constitute solicitation and therefore was not covered by the policy • Policy was discriminatorily applied against non-solicitation union-related e-mail as it had never before been used to prohibit non-solicitation-type e-mail messages

  8. August 14 and August 18 E-mail Message • Court, reversing Board: These e-mails were solicitation but enforcement was discriminatory • Employer had permitted e-mail messages for other kinds of solicitations (sports tickets) • Board’s distinction between soliciting for organizations and soliciting for other purposes was not relied on by employer • Policy did not make distinctions among purposes of solicitation • “a post hoc invention”

  9. Arm Band and Union Insignia • Generally may not be prohibited unless special circumstances are shown • Safety • Product Protection • Employer Image • General customer contact not sufficient to overcome general prohibition • Burden on employer and burden not satisfied • Limited customer contact of employee wearing armband so no image issue

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