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NLRB Tackles E-mail Access

(Press Associates, Inc.)
By Mark Gruenberg

EUGENE, Ore. (PAI)--In May and August, 2000, Suzi
Prozanski, a copy editor with the Eugene (Ore.)
Register-Guard and president of The Eugene Newspaper
Guild, TNG/CWA Local 37194, sat down at her
computers--the first time at the paper and the second
time at the Guild office--and unwittingly unleashed a
hornets’ nest.

What Prozanski did was very simple: She typed two
e-mail messages, and sent them to colleagues.  And she
set off a labor law case that may affect each worker
in the U.S.

Her first e-mail, on May 4, reported on a rally that
took place three days before.  She sent it to her
newsroom colleagues from the newsroom computer.  The
second was in August and from the union computer.  She
asked people to wear green in solidarity during
bargaining with the paper for a raise and a contract.
And she sent it to her colleagues, union and
non-union.  The Guild represents about 150 workers in
Eugene.

The paper invoked its policy against any personal use
of company computers--and e-mail--at any time and
threatened to discipline Prozanski.  It had never
disciplined anyone before, in the four years since it
had imposed the policy.

The Guild fought back, saying unions should be able to
send e-mail to members and non-members, just like they
distribute flyers and bulletins.  And that’s the key
issue the two sides argued at their National Labor
Relations Board hearing almost seven years later, on
March 27 in Washington.

Attorneys for the AFL-CIO and The Guild faced off
against the paper’s management and its business
allies.  The unions argued the e-mail system should be
treated like other common forms of communication and
that censorship of them breaks labor law.
The NLRB’s general counsel sided with the Guild,
calling the paper’s policy too broad.

The Register-Guard and its business allies argue that
e-mail is under company control and that business has
the right to ban all outside use of e-mail, including
union use.

The board’s administrative law judge sided with the
paper’s broad ban on use of e-mail by outsiders,
including unions.  But he also said the paper broke
labor law when it disciplined Prozanski--and nobody
else before that--for violating it.  But that’s not
the issue; who can use e-mail is.

“The board has generally found that an employer may
validly limit employee use of its communications
equipment.  The board has held employees have no
statutory right to use an employer’s equipment or
media,” administrative law judge John J. McCarrick
wrote in his initial ruling in late 2001.  “Thus the
board has found no violation in non-discriminatory
limits on the use of employer bulletin boards,
telephones, public address systems, video equipment
and e-mail.”

But the board’s general counsel disagreed with
McCarrick.  Siding with the union, he called the
Register-Guard’s ban too broad.  E-mail, the general
counsel’s office said, is “a work space” for workers
and labor law protects workers’ rights to free and
uncensored communications in work spaces.

“While E-mail is relatively new in the workplace,
communications policies are not,” the general counsel
argued.  “E-mail clearly falls within the framework of
workplace communication and should be consistent with
existing law on this point.”

That law was set by two Supreme Court cases, one
covering solicitation of workers and the other
covering distribution of material.  In the
solicitation case, the court said workers could not be
barred during non-working times from approaching other
workers to ask about joining unions--even in the
plant.  To cut off all communications at all times
would break labor law, the justices ruled then.

When it comes to solicitation, “inconvenience, or even
some dislocation of (employers’) property rights may
be necessary to safeguard the right to collective
bargaining,” the general counsel, quoting the
justices, told the NLRB.

But distributing anything is another matter.  Since a
flyer is meant to be read, or re-read
--as opposed to a momentary solicitation, such as
asking someone to sign a card--employers can exert
more control over it.

As far as the union, the AFL-CIO and the general
counsel are concerned, e-mail is like solicitation:
Something that can be presented and acted upon in an
instant, not something permanent.  The difference
between e-mail and a flyer, the counsel conceded, is
that you can e-mail someone else back.  He compared it
to a telephone call.

Since e-mail is a work space for workers, the
solicitation case means “there is a presumption that a
policy that prohibits workplace communication during
non-working times is illegal,” and the Register-Guard
did just that, the counsel concluded.

The Register-Guard and its business backers challenged
the ruling on every ground.  They argued that e-mail
is not a work space, and thus is under employer
control.  And they argued that e-mail is
“distribution” and the employer can control that, too.
 In his brief, the company’s attorney even called the
Guild’s notices “spam.”

No date was given for a board ruling on the case. 

From Press Associates, Inc.<press_associates@yahoo.com>