DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The Guard Publishing Company d/b/a The RegisterGuard and Eugene Newspaper Guild, CWA Local 37194. Cases 36–CA–8743–1, 36–CA–8849–

1, 36–CA–8789–1, and 36–CA–8842–1

December 16, 2007

DECISION AND ORDER

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,

SCHAUMBER, KIRSANOW, AND WALSH

In this case, we consider several issues relating to employees’ use of their employer’s e-mail system for Section 7 purposes. First, we consider whether the Respondent violated Section 8(a)(1) by maintaining a policy

prohibiting the use of e-mail for all “nonjob-related solicitations.” Second, we consider whether the Respondent violated Section 8(a)(1) by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails, and Section 8(a)(3) and (1) by

disciplining an employee for sending union-related emails. Finally, we consider whether the Respondent violated Section 8(a)(5) and (1) by insisting on an allegedly

illegal bargaining proposal that would prohibit the use of

e-mail for “union business.”

After careful consideration, we hold that the Respondent’s employees have no statutory right to use the Respondent’s e-mail system for Section 7 purposes. We

therefore find that the Respondent’s policy prohibiting

employee use of the system for “nonjob-related solicitations” did not violate Section 8(a)(1).

With respect to the Respondent’s alleged discriminatory enforcement of the e-mail policy, we have carefully

examined Board precedent on this issue. As fully set

forth herein, we have decided to modify the Board’s approach in discriminatory enforcement cases to clarify that

discrimination under the Act means drawing a distinction

along Section 7 lines. We then address the specific allegations in this case of discriminatory enforcement in accordance with this approach.

Finally, we find that the Respondent did not insist on

its bargaining proposal prohibiting the use of e-mail for

“union business.” Therefore, we dismiss the allegation

that the Respondent insisted on an illegal subject in violation of Section 8(a)(5) and (1).

I. BACKGROUND

On February 21, 2002, Administrative Law Judge John

J. McCarrick issued the attached decision. The Respondent and the General Counsel each filed exceptions and a

supporting brief, and the Charging Party filed crossexceptions and a supporting brief. The General Counsel

and Charging Party each filed an answering brief to the

Respondent’s exceptions. The Respondent filed an an-

351 NLRB No. 70

swering brief to the General Counsel’s exceptions and a

reply brief to the Charging Party’s answering brief.

On January 10, 2007, the National Labor Relations

Board issued a notice of oral argument and invitation to

the parties and interested amici curiae to file briefs. The

notice requested that the parties address specific questions concerning employees’ use of their employer’s email system (or other computer-based communication

systems) to communicate with other employees about

union or other Section 7 matters. The Board’s questions

included, among other things, whether employees have a

Section 7 right to use their employer’s e-mail system to

communicate with one another, what standard should

govern that determination, and whether an employer violates the Act if it permits other nonwork-related e-mails

but prohibits e-mails on Section 7 matters.

The General Counsel, the Charging Party, the Respondent, and various amici filed briefs.1 On March 27,

2007, the Board held oral argument.

The Board has considered the decision and the record

in light of the exceptions, briefs, and oral argument and

has decided to affirm the judge’s rulings, findings, and

conclusions in part,2 to reverse them in part, and to adopt

the recommended Order as modified and set forth in full

below.3

The General Counsel filed a preargument brief and a brief in response to the Respondent’s and amici’s briefs. The Charging Party and

the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) jointly filed a preargument brief. The Charging Party

also filed a reply brief to the Respondent’s and amici’s briefs. The

Respondent filed a preargument brief, a reply brief to the General

Counsel’s brief, and a reply brief to the brief jointly filed by the Charging Party and the AFL–CIO. Amicus briefs were filed by the Council

on Labor Law Equality, Employers Group, the HR Policy Association,

the Minnesota Management Attorneys Association, Proskauer Rose

LLP, the National Employment Lawyers Association, the National

Workrights Institute, and the United States Chamber of Commerce.

In addition to our other findings set forth herein, we adopt the

judge’s conclusion that the Respondent violated Sec. 8(a)(1) by maintaining an overly broad rule prohibiting employees from wearing or

displaying union insignia while working with the public. We agree

with the judge that the Respondent failed to show special circumstances

for the rule. We also reject the Respondent’s argument that the allegation is time-barred by Sec. 10(b) because the rule was promulgated

more than 6 months before the unfair labor practice charge. Although

the rule may have been promulgated outside the 10(b) period, the complaint also alleges, and the judge stated in his conclusions of law, that

the Respondent violated Sec. 8(a)(1) by “maintain[ing]” the rule. The

maintenance during the 10(b) period of a rule that transgresses employee rights is itself a violation of Sec. 8(a)(1). Eagle-Picher Industries, 331 NLRB 169, 174 fn. 7 (2000); Trus Joint MacMillan, 341

NLRB 369, 372 (2004); Control Services, 305 NLRB 435 fn. 2, 442

(1991).

We shall modify the judge’s conclusions of law and recommended

Order and substitute a new notice to conform to our findings and to the

Board’s standard remedial language.

II. FACTS

A. The Respondent’s Communications Systems Policy

The Respondent publishes a newspaper. The Union

represents a unit of about 150 of the Respondent’s employees. The parties’ last collective-bargaining agreement was in effect from October 16, 1996, though April

30, 1999. When the record closed, the parties were negotiating, but had not yet reached a successor agreement.

In 1996, the Respondent began installing a new computer system, through which all newsroom employees

and many (but not all) other unit employees had e-mail

access. In October 1996, the Respondent implemented

the “Communications Systems Policy” (CSP) at issue

here. The policy governed employees’ use of the Respondent’s communications systems, including e-mail.

The policy stated, in relevant part:

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 RegisterGuard. 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.

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.

B. Prozanski’s E-Mails and Resulting Discipline

Suzi Prozanski is a unit employee and the union president. In May and August 2000, Prozanski received two

written warnings for sending three e-mails to unit employees at their Register-Guard e-mail addresses. The

Respondent contends that the e-mails violated the CSP.

1. May 4, 2000 e-mail

The first e-mail involved a union rally that took place

on the afternoon of May 1, 2000. Earlier that day, Managing Editor Dave Baker sent an e-mail to employees

stating that they should try to leave work early because

the police had notified the Respondent that anarchists

might attend the rally. Employee Bill Bishop sent a reply e-mail to Baker and to many employees. Bishop’s e-

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mail message also attached an e-mail the Union had received from the police stating that the Respondent had

notified the police about the possibility of anarchists.

Thus, Bishop’s e-mail implied that Baker was mistaken

or untruthful when he told employees that the police had

notified the Respondent about the anarchists.

The rally took place as scheduled. Afterward, Prozanski learned that certain statements in Bishop’s e-mail had

been inaccurate. On May 2, Prozanski told Baker that

she wanted to communicate with employees to “set the

record straight.” Baker told her to wait until he talked to

Human Resources Director Cynthia Walden. On May 4,

Prozanski had not heard back from management about

her request, so she told Baker that she was going to send

an e-mail response. Baker said, “I understand.”4 Prozanski then sent an e-mail entitled, “setting it straight.”

She composed the e-mail on her break but sent it from

her work station. A few hours later, Baker told Prozanski that she should not have used company equipment to

send the e-mail.

Prozanski’s e-mail began: “In the spirit of fairness, I’d

like to pass on some information to you. . . . We have

discovered that some of the information given to you was

incomplete. . . . The Guild would like to set the record

straight.” The e-mail then set forth the facts surrounding

the call to police about anarchists attending the rally.

The e-mail was signed, “Yours in solidarity, Suzi Prozanski.”

On May 5, Baker issued Prozanski a written warning

for violating the CSP by using e-mail for “conducting

Guild business.”5

The judge found that Baker said, “OK, I understand.” The record

supports the finding that Baker said, “I understand,” but not that he said

“OK” or otherwise expressly gave Prozanski permission to send the email.

The warning stated in full:

On May 4, you used the company’s e-mail system expressly

for the purpose of conducting Guild business. As you know, this

is a violation of the company’s Communications Systems Policy.

This is the second time this week that the policy was disregarded

by officers of the Guild.

In our conversation on the afternoon of May 4, you acknowledged to me that the e-mail system was not to be used for Guild

business and that you “should have known better.” I agree.

What’s even more troubling to me, though, is that the message

you sent—on the company’s e-mail system—is now posted on the

Guild bulletin board, compounding the problem. Employees who

see that e-mail message are likely to assume that it’s OK to use

the company’s e-mail for purposes other than company business.

And, of course, that’s not true. If you composed and sent this email on work time, that would also be inappropriate. This letter

will become part of your personnel file.

Baker also disciplined Bishop for his earlier e-mail about the union

rally. (The reference in Prozanski’s warning to “the second time this

week” is apparently a reference to Bishop’s e-mail.) The complaint

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2. E-Mails on August 14 and 18, 2000

Prozanski received a second written warning on August 22, 2000, for two e-mails sent on August 14 and 18.

The August 14 e-mail asked employees to wear green to

support the Union’s position in negotiations. The August

18 e-mail asked employees to participate in the Union’s

entry in an upcoming town parade. As with the May 4 email, Prozanski sent these e-mails to multiple unit employees at their Register-Guard e-mail addresses. However, this time she sent the e-mails from a computer in

the Union’s office, located off the Respondent’s premises. Prozanski testified she thought that the May 5

warning was for using the Company’s equipment to send

the message, and that there would be no problem if she

sent e-mails from the Union’s office instead. On August

22, however, Walden issued Prozanski a written warning,

stating that Prozanski had violated the CSP by using the

Respondent’s communications system for Guild activities. The warning quoted the CSP’s prohibition on “nonjob-related solicitations.”

C. Respondent’s Bargaining Proposal

Concerning E-Mail Use

About October 25, 2000, during bargaining, the Respondent presented the Union with “counterproposal 26,”

which proposed the following contract language:

The electronic communications systems are the property of the Employer and are provided for business use

only. They may not be used for union business.

On November 15, 2000, the Respondent clarified to

the Union in writing that counterproposal 26 “only prohibits use of the systems for union business.” (Emphasis

in original.) The Respondent stated that its existing CSP

“will govern the use of systems in situations ‘other than’

union business.”

On November 16, 2000, the Union stated that it would

not respond to the proposal because the Union viewed

the proposal as illegally restricting Section 7 rights. On

November 30, 2000, the Union filed a charge alleging

that the Respondent violated Section 8(a)(5) by proposing counterproposal 26. The Region dismissed the

charge on March 31, 2001.

In April 2001, the Union requested, and the Respondent provided, additional information on the scope of

counterproposal 26. On April 21, the parties also discussed the proposal at the bargaining table. The Union’s

lead negotiator, Lance Robertson, noted that the Union’s

unfair labor practice charge had been dismissed. Aldoes not allege that Bishop’s discipline or the enforcement of the CSP

against Bishop was unlawful.

though Robertson continued to press for additional clarification of the proposal, he also told the Respondent:

“I’m here to bargain a proposal.” At the hearing, he testified that the Union’s position as of April 21 was that it

“neither accepted nor rejected” counterproposal 26. The

Union never made a counterproposal. The parties stipulated that counterproposal 26 has been the Respondent’s

position since October 25, 2000.

On April 24, 2001, the Union filed a new charge alleging that the Respondent had proposed and “refus[ed] to

withdraw” counterproposal 26. On August 13, 2001, the

Region revoked its dismissal of the previous charge.

III. THE JUDGE’S DECISION

Noting that an employer may lawfully limit employee

use of the employer’s equipment or media, the judge

found that the Respondent did not violate Section 8(a)(1)

by maintaining the CSP. However, the judge found that

the Respondent did violate Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit union-related e-mails

while allowing a variety of other nonwork-related emails. The judge also found that the Respondent violated

Section 8(a)(3) and (1) by disciplining Prozanski for her

May 4 and August 14 and 18 e-mails. Finally, the judge

found that the Respondent violated Section 8(a)(5) and

(1) by insisting on counterproposal 26, which the judge

found was a codification of the Respondent’s discriminatory practice of allowing personal e-mails but not unionrelated e-mails.

IV. POSITIONS OF THE PARTIES AND AMICI

A. The General Counsel

The General Counsel argues that under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), rules limiting

employee communication in the workplace should be

evaluated by balancing employees’ Section 7 rights and

the employer’s interest in maintaining discipline. The

General Counsel contends that e-mail cannot neatly be

characterized as either “solicitation” or “distribution.”

Nevertheless, e-mail has become the most common

“gathering place” for communications on work and nonwork issues. Because the employees are rightfully on the

employer’s property, the employer does not have an indefeasible interest in banning personal e-mail just because the employer owns the computer system. The

General Counsel distinguishes the Board’s decisions that

find no Section 7 right to use an employer’s bulletin

boards, telephones, and other equipment6 on the basis

that those cases did not involve interactive, electronic

communications regularly used by employees, nor did

they involve equipment used on networks where thou6

These cases are discussed in sec. V,A below.

sands of communications occur simultaneously. However, the General Counsel concedes that the employer

has an interest in limiting employee e-mails to prevent

liability for inappropriate content, to protect against system overloads and viruses, to preserve confidentiality,

and to maintain productivity.

The General Counsel therefore proposes that broad

rules prohibiting nonbusiness use of e-mail should be

presumptively unlawful, absent a particularized showing

of special circumstances. The General Counsel would

evaluate other limitations on employee e-mail use (short

of a complete ban) on a case-by-case basis.

With respect to whether an employer may prohibit

employees from sending union-related e-mails while

allowing other personal e-mails, the General Counsel

notes that this conduct would violate Section 8(a)(1) under current Board precedent. The General Counsel disagrees with the Respondent’s contention that employees

communicating about a union are working on behalf of

an “outside organization.”

B. The Charging Party and Amicus AFL–CIO

The Charging Party and AFL–CIO jointly filed a preargument brief. They contend that where an employer

allows employees to use the e-mail system to communicate with each other on nonbusiness matters generally,

the employees are already rightfully on the employer’s

property, in the sense that they have been allowed access

to the e-mail system. Thus, it is the employer’s management interests, not its property interests, that are implicated. The employer may impose a nondiscriminatory

restriction on e-mail communications during working

time, but may impose additional restrictions only by

showing that they are necessary to further substantial

management interests.

In a reply brief, the Charging Party argues that if the

Board is faced with a conflict between property rights

and Section 7 rights, the Board must balance the two sets

of interests. The Board should first determine the impact

of the restriction on employee rights, and then determine

the effect on the employer’s property rights of forbidding

the restriction.

With respect to enforcement of the CSP, the Charging

Party and AFL–CIO argue that, because the Respondent

allowed personal use of e-mail generally, the Respondent

violated the Act by enforcing the CSP against Prozanski

for sending union-related messages.

C. The Respondent

The Respondent argues that there is no Section 7 right

to use the Respondent’s e-mail system. E-mail, as part of

the computer system, is equipment owned by the Respondent for the purpose of conducting its business. The

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Respondent notes that under Board precedent, an employer may restrict the nonbusiness use of its equipment.

The Respondent argues that Republic Aviation and other

cases dealing with oral solicitation are inapposite because they do not involve use of the employer’s equipment. The Respondent observes that the Union and employees here have many means of communicating in addition to e-mail.

With respect to whether an employer has discriminatorily enforced its e-mail prohibition, the Respondent argues that the correct comparison is not between personal

e-mails and union-related e-mails. Rather, the Respondent argues that in order to determine whether discriminatory enforcement has occurred, the Board should examine whether the employer has banned union-related emails but has permitted outside organizations to use the

employer’s equipment to sell products, to distribute “persuader” literature, to promote organizational meetings, or

to induce group action. The Respondent argues that under this standard, the enforcement of the CSP against

Prozanski was not discriminatory.

D. Amici Supporting the General Counsel and

Charging Party

The National Employment Lawyers Association

(NELA) argues that employer e-mail systems are no different from lunchrooms or breakrooms, and that any attempt to proscribe e-mail communications on nonworking time would contravene Republic Aviation. With

respect to enforcement of the CSP against Prozanski,

NELA notes that the Respondent’s CSP prohibits only

“nonjob-related” solicitations. NELA contends that the

union-related e-mails for which Prozanski was disciplined should be considered job related.

The National Workrights Institute argues that e-mail is

becoming the predominant method of business communication, and that most employer e-mail policies allow

some personal use. However, the Institute contends that

most policies are vague and applied on an ad hoc basis,

and such uncertainty chills employee use of e-mail for

Section 7 purposes. Thus, the Institute argues, banning

union-related e-mails, either officially or in practice,

should be deemed to violate Section 8(a)(1).

E. Amici Supporting the Respondent

Amici supporting the Respondent emphasize the employer’s property interest. They argue that an employer

should be permitted to impose nondiscriminatory restrictions on e-mail use, just as the employer may do with

respect to its other equipment. The HR Policy Association, the Minnesota Management Attorneys Association,

and the United States Chamber of Commerce contend

that e-mail does not fit neatly into the Board’s analytical

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framework for workplace solicitation and distribution.

The Employers Group and the HR Policy Association

also contend, alternatively, that if the Board does decide

to analyze e-mail as either solicitation or distribution, email should be considered more analogous to distribution. The Employers Group and the United States

Chamber of Commerce further argue that an employer

that does allow personal e-mail use must be permitted to

impose reasonable, nondiscriminatory limits on e-mail

use, such as those relating to the size of messages, the

size of attachments, and the number of recipients.

Amici supporting the Respondent generally argue that

an employer does not violate the Act simply because it

permits some personal e-mails while prohibiting solicitations on behalf of unions or other organizations.

V. DISCUSSION

For the reasons set forth below, we agree with the

judge that the Respondent did not violate Section 8(a)(1)

by maintaining the CSP. We also agree with the judge

that the Respondent’s enforcement of the CSP with respect to Prozanski’s May 4 e-mail was discriminatory

and therefore violated Section 8(a)(1). Likewise, the

written warning issued to Prozanski for the May 4 e-mail

violated Section 8(a)(3) and (1).

However, we reverse the judge and dismiss the allegations that the Respondent’s application of the CSP to

Prozanski’s August 14 and 18 e-mails was discriminatory. We also find no 8(a)(3) violation as to Prozanski’s

discipline for those e-mails. Finally, we reverse the

judge and dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26.

A. Maintenance of the CSP

The CSP, in relevant part, prohibits employees from

using the Respondent’s e-mail system for any “nonjobrelated solicitations.” Consistent with a long line of

cases governing employee use of employer-owned

equipment, we find that the employees here had no statutory right to use the Respondent’s e-mail system for Section 7 matters. Therefore, the Respondent did not violate

Section 8(a)(1) by maintaining the CSP.

An employer has a “basic property right” to “regulate

and restrict employee use of company property.” Union

Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir.

1983). The Respondent’s communications system, including its e-mail system, is the Respondent’s property

and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the

Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and

that employers who have invested in an e-mail system

have valid concerns about such issues as preserving

server space, protecting against computer viruses and

dissemination of confidential information, and avoiding

company liability for employees’ inappropriate e-mails.

Whether employees have a specific right under the Act

to use an employer’s e-mail system for Section 7 activity

is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees

have the right to use other types of employer-owned

property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has

consistently held that there is “no statutory right . . . to

use an employer’s equipment or media,” as long as the

restrictions are nondiscriminatory.7

Mid-Mountain

Foods, 332 NLRB 229, 230 (2000) (no statutory right to

use the television in the respondent’s breakroom to show

a prounion campaign video), enfd. 269 F.3d 1075 (D.C.

Cir. 2001). See also Eaton Technologies, 322 NLRB

848, 853 (1997) (“It is well established that there is no

statutory right of employees or a union to use an employer’s bulletin board.”); Champion International

Corp., 303 NLRB 102, 109 (1991) (stating that an employer has “a basic right to regulate and restrict employee

use of company property” such as a copy machine);

Churchill’s Supermarkets, 285 NLRB 138, 155 (1987)

(“[A]n employer ha[s] every right to restrict the use of

company telephones to business-related conversations

. . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988), cert. denied

490 U.S. 1046 (1989); Union Carbide Corp., 259 NLRB

974, 980 (1981) (employer “could unquestionably bar its

telephones to any personal use by employees”), enfd. in

relevant part 714 F.2d 657 (6th Cir. 1983); cf. Heath Co.,

196 NLRB 134 (1972) (employer did not engage in objectionable conduct by refusing to allow prounion employees to use public address system to respond to antiunion broadcasts).8

Our dissenting colleagues, however, contend that this

well-settled principle—that employees have no statutory

right to use an employer’s equipment or media for Section 7 communications—should not apply to e-mail systems. They argue that the decisions cited above involving employer telephones—Churchill’s Supermarkets and

Union Carbide—were decided on discriminatory enforcement grounds, and therefore their language regarding an employer’s right to ban nonbusiness use of its

The separate allegation that the Respondent discriminatorily enforced the CSP is discussed in sec. V,B below.

We do not rely on Adtranz, 331 NLRB 291 (2000), enf. denied 253

F.3d 19 (D.C. Cir. 2001), cited by the judge. In Adtranz, there were no

exceptions to the judge’s dismissal of an allegation that the employer

violated Sec. 8(a)(1) by maintaining a rule restricting the use of e-mail

for nonbusiness purposes.

telephones was dicta. The Board, however, reaffirmed

Union Carbide in Mid-Mountain Foods, supra, citing it

for the specific principle that employees have no statutory right to use an employer’s telephone for nonbusiness purposes. See 332 NLRB at 230.

Nevertheless, our dissenting colleagues assert that the

issue of employees’ use of their employer’s e-mail system should be analyzed under Republic Aviation Corp. v.

NLRB, 324 U.S. 793 (1945), by balancing employees’

Section 7 rights and the employer’s interest in maintaining discipline, and that a broad ban on employee nonwork-related e-mail communications should be presumptively unlawful absent a showing of special circumstances. We disagree and find the analytical framework

of Republic Aviation inapplicable here.

In Republic Aviation, the employer maintained a general rule prohibiting all solicitation at any time on the

premises. The employer discharged an employee for

soliciting union membership in the plant by passing out

application cards to employees on his own time during

lunch periods. The Board found that the rule and its enforcement violated Section 8(a)(1), and the Supreme

Court affirmed. The Court recognized that some “dislocation” of employer property rights may be necessary in

order to safeguard Section 7 rights. See 324 U.S. at 802

fn. 8. The Court noted that the employer’s rule “entirely

deprived” employees of their right to communication in

the workplace on their own time. Id. at 801 fn. 6. The

Court upheld the Board’s presumption that a rule banning all solicitation during nonworking time is “an unreasonable impediment to self-organization . . . in the

absence of evidence that special circumstances make the

rule necessary in order to maintain production or discipline.” Id. at 803 fn. 10. Otherwise, employees would

have no time at the workplace in which to engage in Section 7 communications.9

In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s CSP does not regulate

traditional, face-to-face solicitation. Indeed, employees

at the Respondent’s workplace have the full panoply of

rights to engage in oral solicitation on nonworking time

and also to distribute literature on nonworking time in

nonwork areas, pursuant to Republic Aviation and

Stoddard-Quirk. What the employees seek here is use of

the Respondent’s communications equipment to engage

In a later case, the Board held that employees may also engage in

distribution on nonworking time in nonwork areas. Stoddard-Quirk

Mfg. Co., 138 NLRB 615 (1962). Because we find that e-mail use is

governed by the decisions dealing with the use of an employer’s

equipment, and not by cases dealing with oral solicitation and distribution of literature, we need not address the arguments by some amici that

e-mail is more analogous to distribution than to solicitation.

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in additional forms of communication beyond those that

Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather

than particular means by which employees may seek to

communicate.” Guardian Industries Corp. v. NLRB, 49

F.3d 317, 318 (7th Cir. 1995); see also NLRB v. Steelworkers (Nutone), 357 U.S. 357, 363–364 (1958) (The

Act “does not command that labor organizations as a

matter of law, under all circumstances, be protected in

the use of every possible means of reaching the minds of

individual workers, nor that they are entitled to use a

medium of communications simply because the Employer is using it.”). Republic Aviation requires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” 324 U.S. at 801 fn. 6, of their ability to engage

in Section 7 communications in the workplace on their

own time. It does not require the most convenient or

most effective means of conducting those communications, nor does it hold that employees have a statutory

right to use an employer’s equipment or devices for Section 7 communications.10 Indeed, the cases discussed

above, in which the Board has found no Section 7 right

to use an employer’s equipment, were decided long after

Republic Aviation and have been upheld by the courts.

See, e.g., NLRB v. Southwire Co., 801 F.2d 1252, 1256

(11th Cir. 1986) (no statutory right to use an employer’s

bulletin board); Union Carbide Corp. v. NLRB, 714 F.2d

657, 663 (6th Cir. 1983) (“As recognized by the ALJ,

Union Carbide unquestionably had the right to regulate

and restrict employee use of company property.”) (emphasis in original).

The dissent contends that because the employees here

are already rightfully on the Respondent’s premises, only

the Respondent’s managerial interests—and not its property interests—are at stake. That would be true if the

issue here concerned customary, face-to-face solicitation

and distribution, activities that involve only the employees’ own conduct during nonwork time and do not in10

The Board recently distinguished Republic Aviation in a case involving employee use of an employer’s personal property. In Johnson

Technology, Inc., 345 NLRB 762, 763 (2005), the Board found that the

respondent did not violate Sec. 8(a)(1) by prohibiting an employee

from using the employer’s scrap paper to prepare a union meeting

notice. The Board emphasized that “it is not unlawful for an employer

to caution employees to restrict the use of company property to business purposes.” Rejecting the General Counsel’s reliance on Republic

Aviation, the Board further noted: “The issue in Republic Aviation was

whether an employer’s right to control the activities of employees

lawfully on its premises was subject to limitations to accommodate the

employees’ Sec. 7 rights, such as to engage in prounion solicitations.

Here, the question is whether an employee can take and use the employer’s personalty, without its consent, to engage in a nonwork-related

purpose such as a Sec. 7 activity.” Id. at 763 fn. 8.

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volve use of the employer’s equipment. Being rightfully

on the premises, however, confers no additional right on

employees to use the employer’s equipment for Section 7

purposes regardless of whether the employees are authorized to use that equipment for work purposes.11

The dissent contends that e-mail has revolutionized

business and personal communications and that, by failing to carve out an exception for it to settled principles

regarding use of employer property, we are failing to

adapt the Act to the changing patterns of industrial life.

The dissent attempts to distinguish use of e-mail from

other communication equipment based on e-mail’s interactive nature and its ability to process thousands of

communications simultaneously.

We recognize that e-mail has, of course, had a substantial impact on how people communicate, both at and

away from the workplace. Moreover, e-mail has some

differences from as well as some similarities to other

communications methods, such as telephone systems.

For example, as the dissent points out, transmission of an

e-mail message, unlike a telephone conversation, does

not normally “tie up” the line and prevent the simultaneous transmission of messages by others. On the other

hand, e-mail messages are similar to telephone calls in

many ways. Both enable virtually instant communication regardless of distance, both are transmitted electronically, usually through wires (sometimes the very

same fiber-optic cables) over complex networks, and

both require specialized electronic devices for their

transmission. Although the widespread use of telephone

systems has greatly impacted business communications,

the Board has never found that employees have a general

right to use their employer’s telephone system for Section 7 communications.

In any event, regardless of the extent to which communication by e-mail systems is similar to or different

from communication using other devices or systems, it is

clear that use of the Respondent’s e-mail system has not

eliminated face-to-face communication among the Respondent’s employees or reduced such communication to

an insignificant level. Indeed, there is no contention in

Testimony in the record that sending or receiving a simple “text”

e-mail does not impose any additional monetary cost on the Respondent

is of no consequence to our inquiry here. The Respondent’s property

rights do not depend on monetary cost. Cf. Johnson Technology, supra

at 763 (“[T]he issue is whether the [employees’] use of the property

was protected, not how much the property is worth.”). Moreover, although the dissent, noting that “the Respondent does not own cyberspace,” seems to question the very existence of Respondent’s property

interest in its e-mail system, it is beyond doubt that the Respondent has

a property interest in its servers that host its e-mail system and in the

software on which it operates, as well as its computers on which the

employees access e-mail.

this case that the Respondent’s employees rarely or never

see each other in person or that they communicate with

each other solely by electronic means. Thus, unlike our

dissenting colleagues, we find that use of e-mail has not

changed the pattern of industrial life at the Respondent’s

facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been

rendered useless and that employee use of the Respondent’s e-mail system for Section 7 purposes must therefore be mandated. Consequently, we find no basis in this

case to refrain from applying the settled principle that,

absent discrimination, employees have no statutory right

to use an employer’s equipment or media for Section 7

communications.12

Accordingly, we hold that the Respondent may lawfully bar employees’ nonwork-related use of its e-mail

system, unless the Respondent acts in a manner that discriminates against Section 7 activity.13 As the CSP on its

face does not discriminate against Section 7 activity, we

find that the Respondent did not violate Section 8(a)(1)

by maintaining the CSP.

B. Alleged Discriminatory Enforcement of the CSP

The judge found that the Respondent violated Section

8(a)(1) by discriminatorily enforcing the CSP to prohibit

Prozanski’s union-related e-mails while allowing other

nonwork-related e-mails. We affirm the violation as to

Prozanski’s May 4 e-mail, but reverse and dismiss as to

her August e-mails. In doing so, we modify Board law

concerning discriminatory enforcement.14

Contrary to the dissent, in reaching this conclusion, we are not applying an “alternative means of communication” test appropriate only

for questions of nonemployee access. See Lechmere, Inc. v. NLRB, 502

U.S. 527 (1992). Rather, we are merely examining whether, as asserted

by the dissent, e-mail has so changed workplace communication that

the Board should depart from settled precedent and order that the Respondent must permit employees to use its e-mail system to communicate regarding Sec. 7 matters. Such an analysis necessarily requires

examination of whether the face-to-face solicitation and distribution

permitted under Republic Aviation no longer enable employees to

communicate. As we find controlling here the principle that employees

have no statutory right to use an employer’s equipment or media for

Sec. 7 communications, neither Republic Aviation nor Lechmere is

applicable.

We do not pass on circumstances, not present here, in which there

are no means of communication among employees at work other than

e-mail.

The Respondent contends that all allegations regarding enforcement of the CSP are time-barred by Sec. 10(b), which states in relevant

part that “no complaint shall issue based upon any unfair labor practice

occurring more than 6 months prior to the filing of the charge with the

Board.” The Respondent argues that the 10(b) period runs from 1996,

when the CSP was promulgated. The Respondent further argues that it

gave the Union clear and unequivocal notice in 1997 that the Respondent would invoke the CSP to prohibit union-related e-mails. The

Respondent relies on a 1997 memo from a manager to the Union’s

then-president, Bill Bishop, stating: “I will take responsibility for

1. The appropriate analysis for alleged

discriminatory enforcement

In finding that the Respondent discriminatorily enforced the CSP, the judge relied on evidence that the

Respondent had permitted employees to use e-mail for

various personal messages. Specifically, the record

shows that the Respondent permitted e-mails such as

jokes, baby announcements, party invitations, and the

occasional offer of sports tickets or request for services

such as dog walking.15 However, there is no evidence

that the Respondent allowed employees (or anyone else)

to use 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.

Citing Fleming Co., 336 NLRB 192 (2001), enf. denied 349 F.3d 968 (7th Cir. 2003), the judge found that

“[i]f an employer allows employees to use its communications equipment for nonwork related purposes, it may

not validly prohibit employee use of communications

equipment for Section 7 purposes.” We agree with the

judge that the Board’s decision in Fleming would support

that proposition. However, having carefully examined

current precedent, we find that the Board’s approach in

Fleming and other similar cases fails to adequately examine whether the employer’s conduct discriminated

against Section 7 activity.

In Fleming, the Board held that the employer violated

Section 8(a)(1) by removing union literature from a bulletin board because the employer had allowed “a wide

range of personal postings” including wedding anopening the door to use e-mail for Company/Union communications

. . . I am now closing that door: E-mail will no longer be used for

Company/Union communications. This of course applies also to using

e-mail for Union or any other non-Company solicitations between

employees.”

We find no merit in the Respondent’s argument that the 10(b) period

runs from the promulgation of the policy in 1996 or from the 1997

memo to Bishop. The Board considers each instance of disparate enforcement of a policy to be a separate and independent act for purposes

of Sec. 10(b). Norman King Electric, 334 NLRB 154, 162 (2001).

Moreover, even assuming the 1997 memo constituted notice to the

Union that the Respondent would enforce the e-mail policy against

union-related e-mails, the Respondent’s later actions were inconsistent

with that memo. The Respondent did not adhere to its own statement

that it was “closing the door” to using e-mail for union communications. The Respondent and the Union continued to communicate with

one another by e-mail on matters such as scheduling bargaining sessions, and employees and managers continued to use e-mail for personal messages until the Prozanski incidents in 2000. Thus, the Union

reasonably would have believed the Respondent was not following the

1997 memo. Accordingly, we reject the Respondent’s 10(b) defense.

The judge’s finding that Weight Watchers had access to the Respondent’s e-mail system is not supported. The record shows that the

Respondent distributed information on a Weight Watchers program

through payroll stuffers, not e-mail.

1117

nouncements, birthday cards, and notices selling personal

property such as cars and a television. There was no

evidence that the employer had allowed postings for any

outside clubs or organizations. Id. at 193–194.16 Likewise, in Guardian Industries, 313 NLRB 1275 (1994),

enf. denied 49 F.3d 317 (7th Cir. 1995), the Board found

an 8(a)(1) violation where the employer allowed personal

“swap and shop” postings but denied permission for union or other group postings, including those by the Red

Cross and an employee credit union.

The Seventh Circuit denied enforcement in both cases.

Fleming, supra, 349 F.3d at 968; Guardian, supra, 49

F.3d at 317. In Guardian, the court started from the

proposition that employers may control the activities of

their employees in the workplace, “both as a matter of

property rights (the employer owns the building) and of

contract (employees agree to abide by the employer’s

rules as a condition of employment).” Id. at 317. Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that

the concept of discrimination involves the unequal treatment of equals. See id. at 319. The court emphasized

that the employer had never allowed employees to post

notices of organizational meetings. Rather, the nonworkrelated postings permitted by the employer consisted

almost entirely of “swap and shop” notices advertising

personal items for sale. The court stated: “We must

therefore ask in what sense it might be discriminatory to

distinguish between for-sale notes and meeting announcements.” Id. at 319. The court ultimately concluded that “[a] rule banning all organizational notices

(those of the Red Cross along with meetings pro and con

unions) is impossible to understand as disparate treatment of unions.” Id. at 320.

In Fleming, the court reaffirmed its decision in Guardian and further stated:

Just as we have recognized for-sale notices as a category of notices distinct from organizational notices

(which would include union postings), we can now add

the category of personal postings. The ALJ’s factual

finding that Fleming did not allow the posting of organizational material on its bulletin boards does not support the conclusion that Fleming violated Section

8(a)(1) by prohibiting the posting of union materials.

349 F.3d at 975.

We find that the Seventh Circuit’s analysis, rather than

existing Board precedent, better reflects the principle that

discrimination means the unequal treatment of equals.

Chairman Hurtgen, dissenting, would have dismissed the allegation based on the absence of any evidence that the employer permitted

postings of any outside organizations. Id. at 194–195.

1118

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Thus, in order to be unlawful, discrimination must be

along Section 7 lines. 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. See, e.g.,

Fleming, supra, 349 F.3d at 975 (“[C]ourts should look

for disparate treatment of union postings before finding

that an employer violated Sec. 8(a)(1).”); Lucile Salter

Packard Children’s Hospital at Stanford v. NLRB, 97

F.3d 583, 587 (D.C. Cir. 1996) (charging party must

demonstrate that “the employer treated nonunion solicitations differently than union solicitations”).

For example, an employer clearly would violate the

Act if it permitted employees to use e-mail to solicit for

one union but not another, or if it permitted solicitation

by antiunion employees but not by prounion employees.17 In either case, the employer has drawn a line between permitted and prohibited activities on Section 7

grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That

is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g.,

Avon products), between invitations for an organization

and invitations of a personal nature, between solicitations

and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact

that union solicitation would fall on the prohibited side

of the line does not establish that the rule discriminates

along Section 7 lines.18 For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and

the Salvation Army, but it would prohibit solicitations

for Avon and the union.19

On the other hand, an employer may use its own equipment to

send antiunion messages, and still deny employees the opportunity to

use that equipment for prounion messages. As noted above, employees

are not entitled to use a certain method of communication just because

the employer is using it. See Nutone, supra at 363–364.

Of course, if the evidence showed that the employer’s motive for

the line drawing was antiunion, then the action would be unlawful.

There is no such evidence here.

Member Kirsanow notes that in determining whether a facially Section 7-neutral line has been drawn with an antiunion motive, the employer’s reasonable interest in drawing that particular line would be, for

Member Kirsanow, a relevant consideration. That is, if the line drawn

has the effect of prohibiting all Section 7 communications and is not

based on any reasonable employer interest, Member Kirsanow would

find an antiunion motive to be a permissible inference.

Indeed, the Board has already recognized that allowing limited

charitable solicitations does not necessarily require an employer to

allow union solicitations. See Hammary Mfg. Corp., 265 NLRB 57

(1982) (an employer will not violate Sec. 8(a)(1) by “permitting a small

number of isolated ‘beneficent acts’”—such as solicitation for a United

The dissent contends that our analysis is misplaced because, in 8(a)(1) cases, discrimination is not the essence

of the violation. Rather, the dissent asserts that discrimination is relevant in 8(a)(1) cases merely because it

weakens or exposes as pretextual the employer’s business justification for its actions. In our view, the dissent

overlooks the Supreme Court’s inhospitable response to

this theory and too readily writes off discrimination as

the essential basis of many 8(a)(1) violations.

The dissent argues that denying employees access to

the employer’s e-mail system for union solicitations

while permitting access for other types of messages undermines the employer’s business justification and constitutes discrimination. This argument is at odds with

Supreme Court precedent. In NLRB v. Steelworkers, 357

U.S. 357 (1958), the Court reviewed the Board’s finding

in Avondale Mills, 115 NLRB 840 (1956), that the employer violated Section 8(a)(1) when it denied employees

worktime access to their coworkers for union solicitation

while permitting supervisors to engage in antiunion solicitation on working time. Even though supervisors and

employees were not similarly situated, the Board found

the employer’s rule discriminatory because it diminished

the employees’ ability to communicate their organizational message and the employer’s exception for supervisors belied the working-time-is-for-work justification.

Id. at 842. The Supreme Court disagreed. Although the

Court left the Board free in future cases to proceed on a

theory of actual discrimination, it rejected the notion that

a difference in treatment between any two groups not

similarly situated that undermines the employer’s asserted business justification violates Section 8(a)(1).

According to the Court, there could be no unfair labor

practice finding in such circumstances unless, in view of

the available alternate channels of communication, the

employer had truly diminished the ability of the labor

organization involved to carry its message to the employees.

It is not surprising, therefore, that the dissent fails to

acknowledge that many decisions require actual discrimination. For example, as the Board noted in Salmon

Run Shopping Center, 348 NLRB 658 (2006), the Supreme Court has held that “an employer violates 8(a)(1)

of the Act by prohibiting nonemployee distribution of

union literature if its actions ‘discriminate against the

union by allowing other distribution.’” Id. at 658, quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112

(1956). After determining that the employer’s decision

to deny the union access was based “solely on the UnWay campaign—as “narrow exceptions” to a no-solicitation rule, while

prohibiting union solicitation).

ion’s status as a labor organization and its desire to engage in labor-related speech,” the Board found in Salmon

Run that “[s]uch discriminatory exclusion” violated Section 8(a)(1). Salmon Run Shopping Center, above at 659.

Similarly, in Enloe Medical Center, 348 NLRB 991

(2006), the Board found that the employer violated Section 8(a)(1) by sending employees a message stating that

“it is not appropriate for union literature to be . . . placed

in our breakroom.” The Board found that the message

was discriminatory, and therefore unlawful, because it

“barred only union literature, and no other, from being

placed in the breakroom.” Id. at 991.

To be sure, the cases on which the dissent relies include language suggesting that the employers’ unlawful,

discriminatory conduct tended to undermine their asserted business justifications.20 However, the presence of

such language in those cases does not negate the many

cases that find discriminatory conduct violative of Section 8(a)(1) purely on the basis of the conduct’s discriminatory nature.

We therefore adopt the position of the court in Guardian and Fleming that unlawful discrimination consists of

disparate treatment of activities or communications of a

similar character because of their union or other Section

7-protected status, and we shall apply this view in the

present case and in future cases.21 Accordingly, in determining whether the Respondent discriminatorily enforced the CSP, we must examine the types of e-mails

allowed by the Respondent and ask whether they show

discrimination along Section 7 lines.22

2. Application of the standard

Prozanski’s August 14 e-mail urged all employees to

wear green to support the Union. Her August 18 e-mail

urged employees to participate in the Union’s entry in a

Honeywell, Inc., 722 F.2d 405, 407 (8th Cir. 1983); Sprint/United

Management Co., 326 NLRB 397, 399 (1998); Churchill’s Supermarkets, 285 NLRB 138, 156 (1987).

Accordingly, we overrule the Board’s decisions in Fleming,

Guardian, and other similar cases to the extent they are inconsistent

with our decision here.

We note, however, that our view of “discrimination” is broader than

that of some courts. See, e.g., Cleveland Real Estate Partners v. NLRB,

95 F.3d 457, 465 (6th Cir. 1996) (in case involving nonemployee access to an employer’s premises, court defined “discrimination” as “favoring one union over another or allowing employer-related information while barring similar union-related information”).

We also reject the dissent’s assertion that our test, taken to its

logical extreme, is a license for an employer to permit almost anything

but union communication as long as the employer does not expressly

say so. Indeed, the hypothetical postulated by the dissent shows the

fallacy of this assertion. Thus, contrary to the dissent, a rule barring all

nonwork-related solicitations by membership organizations certainly

would not “permit employees to solicit on behalf of virtually anything

except a union,” given the vast number of membership organizations in

which employees may participate.

1119

local parade. Both messages called for employees to

take action in support of the Union. The evidence shows

that the Respondent tolerated personal employee e-mail

messages concerning social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or

other similar personal items. Notably, however, there is

no evidence that the Respondent permitted employees to

use e-mail to solicit other employees to support any

group or organization.23 Thus, the Respondent’s enforcement of the CSP with respect to the August 14 and

18 e-mails did not discriminate along Section 7 lines, and

therefore did not violate Section 8(a)(1).24

Prozanski’s May 4 e-mail, however, was not a solicitation. It did not call for action; it simply clarified the facts

surrounding the Union’s rally the day before. As noted

above, the Respondent permitted a variety of nonworkrelated e-mails other than solicitations. Indeed, the CSP

itself prohibited only “nonjob-related solicitations,” not

all non-job-related communications. The only difference

between Prozanski’s May e-mail and the e-mails permitted by the Respondent is that Prozanski’s e-mail was

union-related. Accordingly, we find that the Respondent’s enforcement of the CSP with respect to the May 4

e-mail discriminated along Section 7 lines and therefore

violated Section 8(a)(1).25

The sole exception is the limited use of e-mail in connection with

the Respondent’s United Way campaign, which does not establish

discriminatory enforcement. Hammary Mfg. Corp., 265 NLRB 57

(1982) (an employer does not violate 8(a)(1) “by permitting a small

number of isolated ‘beneficent acts’ as narrow exceptions to a nosolicitation rule”).

The dissent asserts that there is no clear evidence that the Respondent ever enforced the CSP against anything other than union-related

messages. However, there is no evidence that any employee had ever

previously sent e-mails soliciting on behalf of any groups or organizations. Accordingly, given the absence of evidence that the Respondent

permitted employees to use e-mail to solicit support for groups or organizations, we decline to find that the Respondent’s barring of e-mail

solicitation on behalf of the Union constituted disparate treatment of

activities or communications of a similar character.

The dissent further argues that the Respondent’s barring of e-mail

solicitations on behalf of the Union was unlawful because the CSP

barred all “nonjob-related” solicitations, but the Respondent—in practice—permitted personal e-mail messages, such as jokes, baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. We note, however, that

the court of appeals in Fleming Co., above, similarly found lawful the

employer’s removal of union literature from a bulletin board even

though the employer’s rule barring posting of all noncompany material

was not enforced and posting of personal notices was routinely allowed.

The Respondent argues that in sending all three e-mails, Prozanski

was acting as a nonemployee union agent, not as an employee, and that

her conduct is therefore governed by Lechmere, Inc. v. NLRB, 502 U.S.

527 (1992). Lechmere holds that an employer may exclude nonemployee union agents from its property, except where the employer acts

discriminatorily or where the union has no reasonable alternative means

to communicate with the employees. Id. at 535, 538. Prozanski was

1120

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

C. The 8(a)(3) Allegations

We agree with the judge that the May 5 warning to

Prozanski violated Section 8(a)(3) and (1). Contrary to

the judge, however, we find it unnecessary to engage in a

Wright Line26 analysis. Wright Line is appropriately used

in cases “turning on employer motivation.” 251 NLRB

at 1089. A Wright Line analysis is not appropriate where

the conduct for which the employer claims to have disciplined the employee was union or other protected activity. See St. Joseph’s Hospital, 337 NLRB 94, 95 (2001)

(warning for displaying union-related screen saver violated 8(a)(3) where employer allowed other nonworkrelated screen savers), enfd. 55 Fed. Appx. 902 (11th Cir.

2002); Saia Motor Freight Line, Inc., 333 NLRB 784,

785 (2001) (8(a)(3) violation found where employee was

disciplined for “distributing union literature”).

Here, the May 5 warning stated that Prozanski “used

the company’s e-mail system expressly for the purpose

of conducting Guild business” and that this violated the

CSP. Thus, it is clear from the warning itself that the

Respondent disciplined Prozanski for sending a unionrelated e-mail. The issue is whether Prozanski lost the

protection of the Act by using the Respondent’s e-mail

system to send the message. With respect to the May 4

e-mail, she did not. As explained above, although there

is no Section 7 right to use an employer’s e-mail system,

there is a Section 7 right to be free from discriminatory

treatment. See St. Joseph’s Hospital, supra at 95. The

Respondent acted discriminatorily in applying the CSP to

Prozanski’s May 4 e-mail. Accordingly, the May 5

warning to Prozanski for sending that e-mail violated

Section 8(a)(3) and (1).

However, we reverse the judge and dismiss the allegation that the August 22 warning violated Section 8(a)(3)

and (1). That warning was issued in response to Prozanski’s August 14 and 18 e-mails. We have found above

that the Respondent’s application of the CSP to prohibit

those e-mails did not discriminate along Section 7 lines.

Prozanski’s conduct was therefore unprotected, and the

August 22 discipline was lawful.

the union president, and she sent the August 14 and 18 e-mails from the

union office. However, we need not reach the issue of whether Lechmere applies because it would not change the result. There would still

be a violation as to the May 4 e-mail under Lechmere’s discrimination

exception. There would be no violation as to the August 14 and 18 emails because there was no discrimination, and there is no allegation

that the Union lacked reasonable alternative means of access to employees.

251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.

denied 455 U.S. 989 (1982), approved in NLRB v. Transportation

Management Corp., 462 U.S. 393 (1983).

D. The 8(a)(5) Allegation

The judge found that the Respondent violated Section

8(a)(5) and (1) by insisting on counterproposal 26, which

the judge found was an unlawful bargaining proposal.

We reverse. In doing so, we find it unnecessary to decide whether counterproposal 26 was unlawful on its

face. Rather, we find the evidence insufficient to show

that the Respondent insisted on the proposal.

A party violates its duty to bargain in good faith by insisting on an unlawful proposal. See, e.g., Teamsters

Local 20 (Seaway Food Town), 235 NLRB 1554, 1558

(1978); Thill, Inc., 298 NLRB 669, 672 (1990), enfd. in

relevant part 980 F.2d 1137 (7th Cir. 1992). However, a

party does not necessarily violate the Act simply by proposing or bargaining about an unlawful subject. Sheet

Metal Workers Local 91 (Schebler Co.), 294 NLRB 766,

773 (1989), enfd. in part 905 F.2d 417 (D.C. Cir. 1990).

Rather, what the Act prohibits is “the insistence, as a

condition precedent of entering into a collective bargaining agreement,” that the other party agree to an unlawful

provision. National Maritime Union (Texas Co.), 78

NLRB 971, 981–982 (1948), enfd. 175 F.2d 686 (2d Cir.

1949), cert. denied 338 U.S. 954 (1950).

Here, contrary to the dissent, we find no proof of such

insistence. The Union filed a charge alleging that the

Respondent had made an unlawful proposal in violation

of Section 8(a)(5). The charge was administratively

dismissed. Thereafter, on April 21, 2001, the Union told

the Respondent that the Union was prepared “to bargain

a proposal” and that the Union “neither accepted nor

rejected” the Respondent’s proposal. The Union also

sought clarification of the proposal, and there is no allegation that such clarification was unlawfully withheld.

Finally, there is no direct evidence that the Union asked

that the proposal be removed from the table.27 In these

circumstances, especially given the initial dismissal of

the Union’s 8(a)(5) charge and the Union’s subsequent

statements that it was prepared “to bargain a proposal”

and that it “neither accepted nor rejected” the Respondent’s proposal, we find the evidence insufficient to establish that the Respondent insisted on the proposal as a

condition of entering into an agreement, or that the proposal impeded negotiations on lawful subjects.28 Accordingly, we find no 8(a)(5) violation.

Contrary to the dissent, we do not find that the Union’s second filing of the charge in itself provided evidence establishing the violation

alleged in the charge.

Under these circumstances, we find it unnecessary to pass on

whether the proposal itself was unlawful.

AMENDED CONCLUSIONS OF LAW

1. Delete the words “and August 22” from the judge’s

Conclusion of Law 2.

2. Delete the judge’s Conclusion of Law 3.

ORDER

The National Labor Relations Board orders that the

Respondent, The Guard Publishing Company d/b/a The

successors, and assigns, shall

1. Cease and desist from

(a) Discriminatorily prohibiting employees from using

the Respondent’s electronic communications systems to

send union-related messages.

(b) Maintaining an overly broad rule that prohibits

employees from wearing or displaying union insignia

while working with customers.

Newspaper Guild, CWA Local 37194 or any other labor

organization.

(d) 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 rule prohibiting circulation department

employees from wearing or displaying union insignia

while working with customers.

(b) Within 14 days from the date of this Order, rescind

the unlawful warning issued to Suzi Prozanski on May 5,

2000, remove from its files any reference to the unlawful

warning, and within 3 days thereafter notify Prozanski in

writing that this has been done and that the warning will

not be used against her in any way.

its facility in Eugene, Oregon, copies of the attached notice marked “Appendix.”29 Copies of the notice, on

forms provided by the Regional Director for Region 19,

after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places,

including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the

Respondent to ensure that the notices are not altered,

defaced, or covered by any other material. In the event

that, during the pendency of these proceedings, the Re29

If this Order is enforced by a judgment of a United States court of

appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the

National Labor Relations Board.”

1121

spondent has gone out of business or closed the facility

involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice

to all current employees and former employees employed

by the Respondent at any time since May 5, 2000.

(d) 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 with this Order.

IT IS FURTHER ORDERED that the complaint is dismissed

insofar as it alleges violations of the Act not specifically

found.

MEMBERS LIEBMAN AND WALSH, dissenting in part.

Today’s decision confirms that the NLRB has become

the “Rip Van Winkle of administrative agencies.” NLRB

v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992). Only

a Board that has been asleep for the past 20 years could

fail to recognize that e-mail has revolutionized communication both within and outside the workplace. In 2007,

one cannot reasonably contend, as the majority does, that

an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards,

telephones, and pieces of scrap paper.

National labor policy must be responsive to the enormous technological changes that are taking place in our

society. Where, as here, an employer has given employees access to e-mail for regular, routine use in their work,

we would find that banning all nonwork-related “solicitations” is presumptively unlawful absent special circumstances. No special circumstances have been shown

here. Accordingly, we dissent from the majority’s holding that the Respondent’s ban on using e-mail for “nonjob-related solicitations” was lawful.

We also dissent, in the strongest possible terms, from

the majority’s overruling of bedrock Board precedent

about the meaning of discrimination as applied to Section

8(a)(1). Under the majority’s new test, an employer does

not violate Section 8(a)(1) by allowing employees to use

an employer’s equipment or media for a broad range of

nonwork-related communications but not for Section 7

communications. We disagree, and therefore would also

affirm the judge’s finding that the Respondent violated

Section 8(a)(3) and (1) by issuing written warnings to

employee Suzy Prozanski for sending union-related emails. Finally, we dissent from the majority’s finding

that the Respondent did not insist on a bargaining proposal that codified the Respondent’s unlawful discrimi-

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

natory practice of prohibiting union-related e-mails while

allowing other nonwork-related e-mails.1

I. FACTS

A. The Respondent’s Communications Systems Policy

Since 1997, the Respondent has provided computer

and e-mail access to the vast majority of its 155 unit employees. Numerous employees testified that they spend

large portions of their workday on the computer, that

they use e-mail regularly, and that to some extent it has

replaced in-person communication.2

The principal issues in this case revolve around a

Communications Systems Policy (CSP) implemented by

the Respondent. The CSP governs employee use of the

Respondent’s communications systems, including e-mail.

It states in relevant part:

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. [Emphasis added.]

Except with respect to union activity, however, the

CSP was honored (and enforced) in the breach. In addition to using e-mail regularly for work-related matters,

the Respondent’s employees, with the Respondent’s

knowledge and tacit approval, also used e-mail to send

and receive nonwork-related messages. For example, the

record contains hard copies of e-mails such as baby announcements, party invitations, a request for a dog

walker, and offers of sports tickets. Employees also testified that they used e-mail for such matters as making

lunch plans, disseminating jokes, keeping in touch with

friends and relatives, and organizing a poker group.

B. The Respondent’s Discipline of Suzi Prozanski for

Sending Union-Related E-Mails

Suzi Prozanski is a unit employee and the Union’s

president. On May 4, 2000, she composed an e-mail

message on her breaktime and sent it to unit employees

from her workstation. The message, entitled “setting it

straight,” clarified facts surrounding a union rally on

We join the majority in rejecting the Respondent’s 10(b) defenses

and in holding that the Respondent violated Sec. 8(a)(1) by maintaining

an overly broad rule prohibiting employees from wearing or displaying

union insignia while working with the public.

The record in this case closed in 2001. Although not necessary, it

is safe to assume that, in the interim, employee use of computers and email has only increased.

May 1.3 On May 5, the Respondent issued Prozanski a

written warning for violating the CSP by using e-mail for

“conducting Guild business.” The warning stated in part:

“Employees who see that e-mail message are likely to

assume that it’s OK to use the company’s e-mail for purposes other than company business. And, of course,

that’s not true.”

On August 14 and 18, Prozanski sent two more e-mails

to unit employees at their Register-Guard e-mail addresses. However, she composed and sent these messages from the Union’s office, off the Respondent’s

premises. The August 14 e-mail asked employees to

wear green to support the Union’s position in negotiations. The August 18 e-mail asked employees to participate in the Union’s entry in an upcoming town parade.

The Respondent issued Prozanski another written warning on August 22, stating that Prozanski had violated the

CSP by using the Respondent’s communications system

for Guild activities. The warning instructed Prozanski to

“stop using the system for dissemination of union information.”

Other than the warnings to Prozanski and a warning to

one other employee, Bill Bishop, there is no clear evidence that the CSP was enforced against any other employees. Managing Editor Dave Baker, Prozanski’s supervisor, testified that he had received numerous nonwork-related e-mails from employees but had never disciplined anyone other than Prozanski and Bishop.4

C. The Respondent’s Bargaining Proposal to Prohibit

Using the Respondent’s Communications Systems

for “Union Business”

The parties’ collective-bargaining agreement expired

on April 30, 1999. In January 1999, they began negotiating for a successor agreement. Negotiations continued

through the time of the 2001 hearing.

On October 25, 2000, at the end of a bargaining session, the Respondent presented the Union with “counterproposal 26,” which proposed the following contract

language:

The electronic communications systems are the property of the Employer and are provided for business use

only. They may not be used for union business.

There was no discussion of the proposal that day. The

parties met again the next day, but did not discuss counterproposal 26. On November 15, around the time of

their next bargaining session, the Respondent clarified in

The circumstances leading up to Prozanski’s message are described

more fully in the majority decision.

As discussed more fully in sec. II,B,1 of the majority decision,

Bishop’s discipline, too, was for a union-related e-mail. That discipline

is not alleged to be unlawful.

writing that counterproposal 26 “only prohibits use of the

systems for union business” (emphasis in original). The

Respondent stated that its existing CSP “will govern the

use of systems in situations ‘other than’ union business.”

On November 16, the Union responded to counterproposal 26 in writing. The response stated that, on the advice of counsel, “we will not respond to this proposal at

this time because it illegally restricts individuals’ rights

to concerted activity in the workplace.” On November

30, the Union filed an unfair labor practice charge alleging that the Respondent violated Section 8(a)(5) by proposing counterproposal 26. The Region dismissed the

charge on March 31, 2001. There is no evidence that the

parties discussed the proposal between the filing and

dismissal of the charge.

On April 9, 2001, the Union made a written request for

information regarding the scope of counterproposal 26.

The request noted that “the Guild asserted at the bargaining table that the company’s proposal sought an illegal

waiver of employee statutory rights and requested that

the employer withdraw the proposal. The company refused.” The Union then requested “immediate clarification as to the intent behind Company Counterproposal

No. 26,” including the types of union-related discussions

it would prohibit. The Union stated: “Absent clarification from the employer as to a contrary intent, the Guild

will assume that its original understanding regarding the

intent of Counterproposal No. 26 was and is correct.”

The Respondent provided a written response on April

21. The response stated in part: “It is unfortunate that

you have decided to create a legal workshop on this issue. Until your unfair labor practice charge was dismissed you refused to even discuss our proposal.” The

response further stated that, “as a general rule,” the proposal would apply to “all union business” and to all unit

employees as well as union officers. It stated that the

Respondent was not asking the union to waive employees’ rights to decertify the Union. However, the proposal

would bar an employee e-mail discussing the merits of a

proposed union dues increase. With regard to other

questions raised by the Union, the Respondent stated that

it could not “try to prejudge all possible hypothetical acts

and circumstances.” The response also referred to Prozanski’s discipline and stated that counterproposal 26

was intended to “make it clear” that its systems were not

to be used for similar communications.

That same day, the parties held a bargaining session at

which the Respondent’s intended scope of counterproposal 26 was discussed further. The Union did not accept or reject any part of the proposal or offer any counterproposal. Rather, the Union’s lead negotiator, Lance

Robertson, continued to press for additional clarification

1123

of the proposal, specifically what the Respondent meant

by “union business.” In response, the Respondent’s negotiator complained that Robertson was not bargaining,

but simply “tak[ing] notes for your appeal to the process.” He also noted the Union’s prior position, that “it

might be illegal for [the Union] to agree with the proposal.” Robertson told the Respondent that he was “here

to bargain a proposal,” but he also stated: “In order to

bargain it, we need to know how it would work.” The

Respondent’s negotiator said that he would take Robertson’s questions under advisement.

After the April 21 session, there is no evidence that the

Respondent provided the Union with any further clarification. On April 24, the Union filed a new 8(a)(5)

charge alleging that the Respondent had proposed and

“refus[ed] to withdraw” counterproposal 26. On August

13, 2001, the Region revoked its dismissal of the previous charge. The parties stipulated that counterproposal

26 has been the Respondent’s position since October 25,

2000.

II. DISCUSSION

A. Maintenance of the CSP

1. Legal framework governing Section 7 communications by employees in the workplace

The General Counsel contends that the CSP’s prohibition on “nonjob-related solicitations” is unlawfully overbroad and violates Section 8(a)(1). The judge dismissed

that allegation, and the majority affirms the dismissal.

We dissent.

The issue in an 8(a)(1) case is whether the employer’s

conduct interferes with Section 7 rights. If so, the employer must demonstrate a legitimate business reason

that outweighs the interference. See, e.g., Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001); Jeannette Corp.,

532 F.2d 916, 918 (3d Cir. 1976).

It is intuitively obvious that the workplace is “uniquely

appropriate” for Section 7 activity. NLRB v. Magnavox

Co. of Tennessee, 415 U.S. 322 (1974). In cases involving employee communications at work, the Board’s task

is to balance the employees’ Section 7 right to communicate with the employer’s right to protect its business interests. Beth Israel Hospital v. NLRB, 437 U.S. 483, 494

(1978). Limitations on communication should not be

“more restrictive than necessary” to protect the employer’s interests. Id. at 502–503.

Republic Aviation Corp. v. NLRB, 324 U.S. 793

(1945), is the seminal case balancing those interests with

respect to oral solicitation in the workplace. The employer in Republic Aviation maintained a rule prohibiting

solicitation anywhere on company property and discharged an employee for soliciting for the union during

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

nonworking time. The Board adopted a presumption that

restricting oral solicitation on nonworking time was

unlawful, absent special circumstances. The Supreme

Court affirmed the Board’s finding that the employer’s

rule and its enforcement violated Section 8(a)(1). Although the solicitation occurred on the employer’s property, the Court found that an insufficient justification to

allow the employer to prohibit it. Rather, the Court endorsed the Board’s reasoning that “[i]t is not every interference with property rights that is within the Fifth

Amendment. . . . Inconvenience or even some dislocation of property rights, may be necessary in order to

safeguard the right to collective bargaining.” 324 U.S. at

802 fn. 8. Although an employer may make and enforce

“reasonable rules” covering the conduct of employees on

working time, “time outside working hours . . . is an employee’s time to use as he wishes without unreasonable

restraint, although the employee is on company property.” Id. at 803 fn. 10 (emphasis added). The Court

upheld the Board’s presumption that a rule banning solicitation during nonworking time is “an unreasonable

impediment to self-organization . . . in the absence of

evidence that special circumstances make the rule necessary in order to maintain production or discipline.” Id. at

803 fn. 10.

Thus, the presumption adopted in Republic Aviation

vindicates the right of employees to communicate in the

workplace regarding Section 7 matters, subject to the

employer’s right to maintain production and discipline.

Although the majority correctly notes that the rule in

Republic Aviation itself involved a complete ban on solicitation on the employer’s premises, the Board and

courts have long since applied Republic Aviation’s principles to lesser restrictions on employee speech. See,

e.g., Beth Israel, 437 U.S. at 492 (rule prohibiting solicitation and distribution in the hospital’s patient-care and

public areas; employer permitted those activities in employee locker rooms and restrooms); Times Publishing

Co., 240 NLRB 1158 (1979) (rule prohibiting solicitation

in “public areas” of the building), affd. 605 F.2d 847 (5th

Cir. 1979); Bankers Club, Inc., 218 NLRB 22, 27 (1975)

(rule banning solicitation in “customer areas” of the respondent’s restaurant).

The Supreme Court struck quite a different balance in

cases involving nonemployees seeking to communicate

with employees on the employer’s premises. In a case

involving distribution of union literature on an employer’s property by nonemployee union organizers, the

Court emphasized that “[a]ccommodation” between Section 7 rights and employer property rights “must be obtained with as little destruction of one as is consistent

with the maintenance of the other.” NLRB v. Babcock &

Wilcox, 351 U.S. 105, 112 (1956). The Court held that

an employer “may validly post his property against nonemployee distribution of union literature if reasonable

efforts by the union through other available channels of

communication will enable it to reach the employees

with its message and if the employer’s notice or order

does not discriminate against the union by allowing other

distribution.” Id. (emphasis added). Distinguishing Republic Aviation on the basis that it involved communications by employees, the Court emphasized that “[t]he

distinction [between employees and nonemployees] is

one of substance. No restriction may be placed on the

employees’ right to discuss self-organization among

themselves, unless the employer can demonstrate that a

restriction is necessary to maintain production or discipline. But no such obligation is owed nonemployee organizers.” Id. at 113; see also Hudgens v. NLRB, 424

U.S. 507, 521 fn. 10 (1976) (“A wholly different balance

[is] struck when the organizational activity was carried

on by employees already rightfully on the employer’s

property, since the employer’s management interests

rather than his property interests were there involved.”).

In short, the Board and courts have long protected employees’ rights to engage in Section 7 communications at

the workplace, even though the employees are on the

employer’s “property.”

2. The Respondent’s prohibition on all “nonjobrelated solicitations” violated Section 8(a)(1)

Applying the foregoing principles, the General Counsel contends that employer rules restricting employee email use must be evaluated under Republic Aviation, and

that broad bans on employee e-mail use should be presumptively unlawful. The General Counsel emphasizes

that e-mail has become the “natural gathering place” for

employees to communicate in the workplace,5 and that email sent and received on computers issued to employees

for their use is not analogous to employer “equipment”

such as bulletin boards, photocopiers, and public address

systems.

The majority, however, finds the Republic Aviation

framework inapplicable. Emphasizing the employer’s

“property” interest in its e-mail system, the majority reasons that, absent discriminatory treatment, employees

have no Section 7 right to use employer personal property such as bulletin boards, television sets, and telephones. According to the majority, Republic Aviation

ensures only that employees will not be “entirely de5

See Beth Israel, supra at 490 (noting that the employer recognized

the cafeteria as a “natural gathering place” for employees, because the

employer had used and permitted use of the cafeteria for other types of

solicitation and distribution).

prived” of the ability to engage in any Section 7 communications in the workplace, but otherwise does not entitle

employees to use their employer’s equipment. Here, the

majority asserts, the employees had other means of

communication available.

We disagree. Indeed, we find that the General Counsel’s approach is manifestly better suited to the role of email in the modern workplace. “The responsibility to

adapt the Act to changing patterns of industrial life is

entrusted to the Board.” NLRB v. J. Weingarten, 420

U.S. 251, 266 (1975). The majority’s approach is flawed

on several levels. First, it fails to recognize that e-mail

has revolutionized business and personal communications, and that cases involving static pieces of “equipment” such as telephones and bulletin boards are easily

distinguishable. Second, the majority’s approach is

based on an erroneous assumption that the Respondent’s

ownership of the computers gives it a “property” interest

that is sufficient on its own to exclude Section 7 e-mails.

Third, the majority’s assertion that Republic Aviation

created a “reasonable alternative means” test, even regarding employees who are already rightfully on the employer’s property, is untenable.6

E-mail has dramatically changed, and is continuing to

change, how people communicate at work. According to

a 2004 survey of 840 U.S. businesses, more than 81 percent of employees spent at least an hour on e-mail on a

typical workday; about 10 percent spent more than 4

hours.7 About 86 percent of employees send and receive

at least some nonbusiness-related e-mail at work.8 Those

percentages, no doubt, are continuing to increase. “Even

employees who report to fixed work locations every day

have seen their work environments evolve to a point

where they interact to an ever-increasing degree electronically, rather than face-to-face. The discussion by

the water cooler is in the process of being replaced by the

discussion via e-mail.”9

We also disagree with the majority’s characterization of our approach as “carv[ing] out an exception” to precedent. Our analysis is

hardly novel. Rather, as explained below, we apply the decades-old

principles that employees have a right to communicate in the workplace, that the Board must balance that right with the employer’s right

to protect its business interests, and that interference with employees’

Section 7 rights is unlawful unless outweighed by a legitimate business

interest. Republic Aviation, supra, 324 U.S. at 803 fn. 10; Beth Israel,

supra, 437 U.S. at 494; Jeannette Corp., supra, 532 F.2d at 918.

American Management Association, 2004 Workplace E-Mail and

Instant Messaging Survey (2004).

(www.amanet.org/research/pdfs/IM_2004_summary.pdf).

Id.

Martin H. Malin & Henry H. Perritt Jr., “The National Labor Relations Act in Cyberspace: Union Organizing in Electronic Workplaces,”

49 U. Kan. L. Rev. 1, 17 (Nov. 2000).

1125

Given the unique characteristics of e-mail and the way

it has transformed modern communication, it is simply

absurd to find an e-mail system analogous to a telephone,

a television set, a bulletin board, or a slip of scrap paper.

Nevertheless, that is what the majority does, relying on

the Board’s statements in prior cases that an employer

may place nondiscriminatory restrictions on the nonwork-related use of such equipment and property.10

None of those “equipment” cases, however, involved

sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges.

Rather, they involved far more limited and finite resources. For example, if a union notice is posted on a

bulletin board, the amount of space available for the employer to post its messages is reduced. See, e.g.,

Sprint/United Management Co., 326 NLRB 397, 399

(1998) (employer “may have a legitimate interest in ensuring that its postings can easily be seen and read and

that they are not obscured or diminished in prominence

by other notices posted by employees”). If an employee

is using a telephone for Section 7 or other nonworkrelated purposes, that telephone line is unavailable for

others to use. Indeed, in Churchill’s Supermarkets, 285

NLRB 138, 147 (1987), enfd. 857 F.2d 1471 (6th Cir.

1988), cert. denied 490 U.S. 1046 (1989), cited by the

majority, the judge noted that the employer’s “overriding

consideration has always been that an employee should

not tie up the phone lines” for personal use.11 Here, in

contrast, the Respondent concedes that text e-mails impose no additional cost on the Respondent. At the time

of the hearing in 2000, the Respondent’s system was

receiving as many as 4000 e-mail messages per day.

One or more employees using the e-mail system would

not preclude or interfere with simultaneous use by management or other employees. Furthermore, unlike a telephone, e-mail’s versatility permits the sender of a mes10

See sec. V,A of the majority decision.

In any event, the statements in Churchill’s, supra, and Union Carbide Corp., 259 NLRB 974, 980 (1981), enfd. in relevant part 714 F.2d

657 (6th Cir. 1983), that an employer may bar all personal use of its

telephones were dicta. In both of those cases, the Board found that the

employer had discriminatorily prohibited union-related telephone calls

while allowing other personal calls. Therefore, the Board was not

faced with the issue of whether a nondiscriminatory ban on personal

use was lawful.

The majority states that the Board “reaffirmed” Union Carbide in

Mid-Mountain Foods, 332 NLRB 229 (2000), enfd. 269 F.3d 1075

(D.C. Cir. 2001), by citing Union Carbide for the principle that employees have no statutory right to use an employer’s telephone for nonbusiness purposes. The majority in Mid-Mountain did cite Union Carbide in passing for that principle, but did not engage in any analysis

specific to the use of an employer’s telephone system. Mid-Mountain

involved the use of an employer’s television set, not its telephone system. In any event, Member Liebman dissented on that issue in MidMountain, and Member Walsh did not participate in the case.

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

sage to reach a single recipient or multiple recipients

simultaneously; allows the recipients to glimpse the subject matter of the message before deciding whether to

read the message, delete it without reading it, or save it

for later; and, once opened, allows the recipient to reply

to the sender and/or other recipients, to engage in a realtime “conversation” with them, to forward the message

to others, or to do nothing. Neither the telephone nor any

other form of “equipment” addressed in the Board’s prior

cases shares these multidimensional characteristics.

The majority relies on the employer’s ownership of the

computer system as furnishing a “basic property right” to

regulate e-mail use. But ownership, simpliciter, does not

supply the Respondent with an absolute right to exclude

Section 7 e-mails. The Respondent has already provided

the computers and the e-mail capability to employees for

regular and routine use to communicate at work.12 Thus,

the employees are not only “rightfully” on the Respondent’s real property, the building itself; they are rightfully on (using) the computer system. See Hudgens, supra at 521 (when activity is “carried on by employees

already rightfully on the employer’s property . . . the

employer’s management interests rather than his property

interests” are involved). Moreover, an e-mail system and

the messages traveling through it are not simply “equipment”; the Respondent does not own cyberspace. See

Reno v. ACLU, 521 U.S. 844, 850 (1997) (e-mail, the

“World Wide Web,” and mail listing services “constitute

a unique medium—known to its users as ‘cyberspace’—

located in no particular geographic location but available

to anyone, anywhere in the world, with access to the

Internet”).

As the discussion above demonstrates, the existence of

a “property right” does not end the inquiry—rather, it

only begins it. The Respondent has not demonstrated

how allowing employee e-mails on Section 7 matters

interferes with its alleged property interest. To repeat,

the Respondent already allows the employees to use the

computers and e-mail system for work—and, for that

matter, for personal messages. Additional text e-mails

do not impose any additional costs on the Respondent.

And e-mail systems, unlike older communications media,

accommodate multiple, simultaneous users.

Common law involving computer “trespass,” on which

the Respondent relies, harms its case rather than helping

it. Trespass cases illustrate that the mere use of a computer system to send e-mails does not interfere with the

owner’s property interest, absent some showing of harm

Cf. Sprint/United Management Co., 326 NLRB 397, 399 (1998)

(drawing a distinction between a bulletin board and the locker space

that the respondent had “already ceded . . . to the personal use of the

employees to whom the lockers are assigned”).

to the system. The Restatement (Second) of Torts states

in part: “The interest of a possessor of a chattel in its

inviolability, unlike the similar interest of a possessor of

land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another’s

chattel may be liable, his conduct must affect some other

and more important interest of the possessor.” See Section 218, cmt. e. Where courts have allowed tort actions

to go forward based on trespass to a computer system,

they have relied on specific allegations of harm.13 Courts

have dismissed claims where there was no such evidence.14

As stated, the majority also reasons, based on the particular facts of Republic Aviation, that the Respondent

need not yield its “property interests” here, because employees have alternative means to communicate in the

workplace, such as oral in-person communication. In

2007, however, that train has already left the station: that

is not how the courts and the Board have applied Republic Aviation, and the availability of alternative means is

not relevant when dealing with employee-to-employee

communications. See, e.g., Babcock & Wilcox, supra at

112–113; Helton v. NLRB, 656 F.2d 883, 896–897 (D.C.

Cir. 1981) (collecting cases). The alternative-means test

applies only to activity by nonemployees on the employer’s property. See Babcock & Wilcox, supra at 112;

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The distinction between employee and nonemployee activity is

“one of substance.” Babcock & Wilcox, supra at 113. If

the absence of alternative means to communicate in the

workplace were a prerequisite to employees’ right to

engage in Section 7 activity on employer property, presumably an employer could ban oral solicitation by em13

See, e.g., Compuserve Incorporated v. Cyber Promotions, Inc.,

962 F.Supp. 1015, 1022–1023 (S.D. Ohio 1997) (injunction granted to

internet service provider against spam advertiser; handling the enormous volume of mass mailings burdened plaintiff’s equipment, and

many subscribers terminated their accounts because of the spam); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004) (use of

computer “robots” to obtain data through multiple queries of plaintiff’s

database consumed a significant portion of the system’s capacity, and if

the practice were permitted to continue, it was “highly probable” that

others would devise similar programs, leading to overtaxing of the

system).

See, e.g., Pearl Investments, LLC v. Standard I/O, Inc., 257

F.Supp. 326, 354 (D. Me. 2003) (even if defendant accessed the network without authorization, “there is no evidence that in doing so he

impaired its condition, quality or value”); Intel Corp. v. Hamidi, 71

P.3d 296, 304, 308 (Cal. 2003) (no liability where evidence did not

show that ex-employee’s multiple e-mails criticizing the company

“used the system in any manner in which it was not intended to function or impaired the system in any way”; “Whatever interest Intel may

have in preventing its employees from receiving disruptive communications, it is not an interest in personal property. . . .”).

ployees in “work areas,” or even everywhere except an

employee breakroom, without any showing of special

circumstances, because the employer would not have

“entirely deprived” employees of the right to communicate on the premises. Of course, neither the Board nor

the Supreme Court has ever placed such limits on Section 7 communication.15

For all of the foregoing reasons, we reject the majority’s conclusion that e-mail is just another piece of employer “equipment.” Where, as here, the employer has

given employees access to e-mail in the workplace for

their regular use, we would find that banning all nonwork-related “solicitations” is presumptively unlawful

absent special circumstances. This presumption recognizes employees’ rights to discuss Section 7 matters using a resource that has been made available to them for

routine workplace communication. Because the presumption is rebuttable, it also recognizes that an employer may have interests that justify a ban. For example, an employer might show that its server capacity is so

limited that even text e-mails would interfere with its

operation.16 An employer might also justify more limited

restrictions on nonwork-related e-mails—such as prohibiting large attachments or audio/video segments—by

demonstrating that such messages would interfere with

the efficient functioning of the system. In addition, rules

limiting nonwork-related e-mails to nonworking time

would be presumptively lawful, just as with oral solicitations.17

See, e.g., Stoddard-Quirk Mfg. Co., 138 NLRB 615, 621 (1962)

(“the right of employees to [orally] solicit on plant premises must be

afforded subject only to the restriction that it be on nonworking time”;

in contrast, distribution of flyers and other printed material may be

limited to nonworking time and nonworking areas).

We would, however, require specific evidence to support such an

assertion. “‛Suffer the servers’ is among the most chronically overused

and under-substantiated interests asserted by parties . . . involved in

Internet litigation. . . .” White Buffalo Ventures v. University of Texas

at Austin, 420 F.3d 366, 375 (5th Cir. 2005), cert. denied 546 U.S. 1091

(2006).

As with oral solicitations, however, if an employer has no rule in

place that limits nonwork-related e-mails to nonworking time, the employer must show an actual interference with production or discipline in

order to discipline employees for e-mails sent on working time. See,

e.g., Union Carbide, supra at 979.

The Respondent and various amici argue that because of the nature

of e-mail, enforcement of a “working time” restriction would be difficult. But similar difficulties exist even with oral solicitation rules. For

example, where employees self-regulate their breaks, where a supervisor is not constantly present, or where the nature of the employees’

work requires them to move around the workplace rather than stay at a

particular workstation, an employer may have difficulty enforcing an

oral solicitation rule. That difficulty, however, has never been held to

be a special circumstance justifying an outright ban on employee-toemployee communications.

1127

Here, the Respondent has shown no special circumstances for its ban on “nonjob-related solicitations,”

which on its face would prohibit even solicitations on

nonworking time, without regard to the size of the message or its attachments, or whether the message would

actually interfere with production or discipline. Accordingly, we would reverse the judge and find that the Respondent violated Section 8(a)(1) by maintaining the

portion of the CSP that prohibits employees from using

e-mail for “nonjob-related solicitations.”

B. The Respondent’s Enforcement of the CSP

Even assuming the maintenance of the CSP were lawful, the judge correctly found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing it.

The majority does not dispute that this result was correct

under Board precedent. Instead, the majority overrules

that precedent and announces a new, more limited conception of “discrimination,” based on two decisions from

the Seventh Circuit.18

As explained below, we respectfully but emphatically

disagree with the Seventh Circuit’s analysis.19 But even

assuming we did not, the majority’s application of its

new test is flawed. Accordingly, we would affirm the

judge’s conclusion that the Respondent violated Section

8(a)(1) by discriminatorily enforcing the CSP to all three

of Prozanski’s union-related e-mails.

1. The Respondent violated Section 8(a)(1)

under longstanding precedent

Section 7 grants employees the right “to engage in . . .

concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” An employer

violates Section 8(a)(1) by “interfer[ing] with, restrain[ing], or coerc[ing] employees” in the exercise of

that right. In particular, and in accord with the decadesold understanding of discrimination within the meaning

of the National Labor Relations Act, the Board has long

held that an employer violates that section by allowing

employees to use an employer’s equipment or other resources for nonwork-related purposes while prohibiting

Section 7-related uses. See, e.g., Vons Grocery Co., 320

Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir. 2003); Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995).

As the Seventh Circuit itself has observed, it is not the obligation

of the Board to “knuckle under to the first court of appeals (or the second, or even the twelfth) to rule adversely to the Board. The Supreme

Court, not this circuit . . . is the supreme arbiter of the meaning of the

laws enforced by the Board . . . .” Nielsen Lithographing Co. v. NLRB,

854 F.2d 1063, 1066 (1988). Rather, the court continued, the duty of

the Board when faced with adverse circuit precedent is “to take a

stance, to explain which decisions it agree[s] with and why, and to

explore the possibility of intermediate solutions. . . . We do not follow

stare decisis inflexibly; if the Board gives us a good reason to do so, we

shall be happy to reexamine [our decisions].”

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

NLRB 53, 55 (1995) (bulletin board); Honeywell, Inc.,

262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir.

1983) (bulletin board); Union Carbide, supra at 980

(telephone). As recently as 2005, the Board applied this

principle to employee use of e-mail. See Richmond

Times-Dispatch, 346 NLRB 74, 76 (2005) (employer

violated Sec. 8(a)(1) by permitting a “wide variety of email messages unrelated to the Respondent’s business”

but prohibiting union-related messages), enfd. 225 Fed.

Appx. 144 (4th Cir. 2007), cert. denied 128 S.Ct. 492

(2007); see also E. I. du Pont de Nemours & Co., 311

NLRB 893, 919 (1993) (employer violated Sec. 8(a)(1)

by permitting the “routine use” of e-mail by employees

“to distribute a wide variety of material that has little if

any relevance to the Company’s business,” but prohibiting the use of e-mail to distribute union literature).

Here, the record makes plain that the Respondent allowed employees to use e-mail for a broad range of nonwork-related messages, including e-mails requesting employees to participate in nonwork-related events. For

example, employees and supervisors used e-mail to circulate jokes, baby announcements, and party invitations;

to offer sports tickets; to seek a dog walker; to organize a

poker group; and to make lunch plans. Yet, the Respondent enforced the CSP against Prozanski for sending

three union-related messages. This is a clear 8(a)(1) violation under longstanding precedent.

2. The majority’s standard

The majority defines “unlawful discrimination” as

“disparate treatment of activities or communications of a

similar character because of their union or other Section

7-protected status.” According to the majority, the employer “may draw a line between charitable solicitations

and non-charitable solicitations, between solicitations of

a personal nature . . . and solicitations for the commercial

sale of a product . . ., between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related

use and non-business-related use.” Applying that standard to the record here, the majority finds that the Respondent permitted nonwork-related e-mails other than

solicitations, but had never permitted solicitations to

support any group or organization. Therefore, the majority concludes, the Respondent discriminated along Section 7 lines in applying the CSP to Prozanski’s May 4 email about the union rally (which was not a solicitation),

but did not discriminate in applying the CSP to Prozanski’s August 14 and 18 e-mails (which the majority finds

were solicitations).

a. The Fleming and Guardian decisions

The majority decision is based on two Seventh Circuit

cases: Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir.

2003), denying enf. to 336 NLRB 192 (2001), and

Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th

Cir. 1995), denying enf. to 313 NLRB 1275 (1994). In

Guardian, the Board found an 8(a)(1) violation where

the employer allowed personal “swap and shop” postings

advertising items for sale, but denied permission for union or other group postings, including those by the Red

Cross and an employee credit union. In Fleming, the

Board held that the employer violated Section 8(a)(1) by

removing union literature from a bulletin board. Although the employee handbook stated that the bulletin

boards were “for company business purposes only,” the

employer had allowed “a wide range of personal postings,” including wedding announcements, birthday cards,

and notices selling personal property such as cars and a

television. There was no evidence that the employer had

allowed postings for any outside clubs or organizations.

336 NLRB at 193–194. According to the credited testimony, an employee had asked permission to post a

church announcement, which the employer denied. Id. at

202–203. Thus, the employer had affirmatively excluded

at least one “organizational” posting other than union

postings.

The Seventh Circuit denied enforcement in both cases.

In Guardian, the court stated that discrimination “is a

form of inequality” and that a person claiming discrimination “must identify another case that has been treated

differently and explain why that case is ‘the same’ in the

respects the law deems relevant or permissible as

grounds of action.” See id. at 319. Reasoning that “labor law is only one of many bodies implementing an

antidiscrimination principle,” id., the court posed several

hypotheticals about whether other statutes or constitutional provisions, such as the Age Discrimination in Employment Act (ADEA) or the First Amendment, would

be violated by allowing certain personal notices to be

posted in the workplace, but not allowing postings by

political groups or senior citizens’ groups. The court

found that such practices would not be discriminatory.

The court also relied on Perry Education Assn. v. Perry

Local Educators’ Assn., 460 U.S. 37 (1983), in which the

Supreme Court held that a school system did not violate

the First Amendment by allowing the collectivebargaining representative and certain other groups, but

not a rival union, to use the school’s internal mailboxes.

Turning back to the facts of the case before it, the Guardian court noted that the employer had never allowed employees to post notices of organizational meetings. The

court acknowledged that a practice of tolerating notices

for anything but unions would be “antiunion discrimination by anyone’s definition,” id. at 321, but “[a] rule

banning all organizational notices (those of the Red

Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.” Id.

at 320. Accordingly, the court found that the employer’s

refusal to post union notices was not unlawful. Id. at

322.

In Fleming, the court reaffirmed Guardian. 349 F.3d

at 975. The court noted that Fleming did not enforce its

written “company use only” policy, but that “Fleming

consistently excluded any posting of group or organizational notices.” Id. at 974. Therefore, the court reasoned, “Fleming’s actual practice of permitting personal

postings, but not organizational ones, was consistently

enforced.” Id. at 975. The court then held: “Just as we

have recognized for-sale notices as a category of notices

distinct from organizational notices (which would include union postings), we can now add the category of

personal postings.” Id.20

b. The Seventh Circuit’s analysis is inappropriate

in the context of the NLRA

In analyzing whether union postings were “equal to”

“swap and shop” notices, the Guardian court relied on

case law and hypotheticals involving the First and Fourteenth Amendments and ADEA. See 49 F.3d at 320.

Thus, the court implicitly assumed that the “discriminatory” enforcement of a rule in violation of Section 8(a)(1)

is analogous to “discrimination” in other contexts. Cf.

Rebecca Hanner White, Modern Discrimination Theory

and the National Labor Relations Act, 39 Wm. & Mary

L. Rev. 99, 115 (Oct. 1997) (the Guardian court “mistakenly . . . imported Title VII’s disparate treatment approach into Section 8(a)(1)”).

The hypotheticals posed by the court, however, are not

analogous to an 8(a)(1) analysis. Unlike antidiscrimination statutes, the Act does not merely give employees the

right to be free from discrimination based on union activity. It gives them the affirmative right to engage in concerted group action for mutual benefit and protection.

Nor are employees’ Section 7 rights dependent on a

“public forum” analysis, as in Perry. Rather, in evaluating whether an employer’s conduct violates Section

8(a)(1), the Board examines whether the conduct rea20

But see J. C. Penney Co. v. NLRB, 123 F.3d 988 (7th Cir. 1997)

(cited in Fleming, supra at 974–975) (employer violated 8(a)(1) by

removing union postings from bulletin boards and union bumper stickers from work carts while allowing other postings and stickers; court

emphasized that the employer’s enforcement of its bulletin board policy

was “spotty” and rejected an argument that the stickers permitted on the

work carts were “not similar in character” to union stickers, because

they were personal).

1129

sonably tended to interfere with those affirmative Section

7 rights. If so, the burden is on the employer to demonstrate a legitimate and substantial business justification

for its conduct. Caesar’s Palace, 336 NLRB 271, 272

fn. 6 (2001); Jeannette Corp., 532 F.2d 916, 918 (3d Cir.

1976). Motive is not part of the analysis. Section 8(a)(3)

separately prohibits discrimination with the motive to

encourage or discourage union support.21

Therefore, by focusing on what types of activities are

“equal” to Section 7 activities, the majority misses the

point. In 8(a)(1) cases, the essence of the violation is not

“discrimination.” Rather, it is interference with employees’ Section 7 rights. The Board’s existing precedent on

discriminatory enforcement—that an employer violates

Section 8(a)(1) by allowing nonwork-related uses of its

equipment while prohibiting Section 7 uses—is merely

one application of Section 8(a)(1)’s core principles: that

employees have a right to engage in Section 7 activity,

and that interference with that right is unlawful unless

the employer shows a business justification that outweighs the infringement. Discrimination, when it is present, is relevant simply because it weakens or exposes as

pretextual the employer’s business justification.22

Contrary to the majority’s contention, this principle is

not at odds with NLRB v. Steelworkers (Nutone), 357

U.S. 357 (1958). In that case, the Court addressed the

“very narrow and almost abstract question” of whether

an employer violates the Act by enforcing a facially valid

no-solicitation rule against employees when the employer

has engaged in antiunion solicitation. Id. at 362. Thus,

the case involved the employer’s own communications—

through its supervisors—in a campaign against the union.

On that basis alone, we would have to reject the majority’s definition of 8(a)(1) discriminatory enforcement as “disparate treatment of

activities or communications of a similar character because of their

union or other Section 7-protected status” (emphasis added). This

improperly suggests that discriminatory motive is required—something

even the Seventh Circuit does not propose.

See, e.g., Honeywell, 722 F.2d at 407 (an employer’s decision to

allow other bulletin board postings “minimize[d] its managerial concerns”); Sprint/United Management Co., supra, 326 NLRB at 399

(1998) (where the employer had “already ceded the locker space to the

personal use of the employees to whom the lockers are assigned,” the

employer “has clearly already assumed the risk” that the presence of

other materials in the lockers could cause notices the employer places

there to be overlooked; “[t]hus, the [employer] cannot legitimately

claim that concern as a reason for refusing to allow employees to put

union literature into the lockers”); Churchill’s, 285 NLRB at 156

(“When an employer singles out union activity as its only restriction on

the private use of company phones, it is not acting to preserve use of

the phones for company business. It is interfering with union activity

. . . .”); White, supra at 111 (“Under a [S]ection 8(a)(1) balancing approach, an employer that permits solicitation by employees during

working time for nonunion activities is hard-pressed to stand on its

managerial interests in production and discipline when the working

time solicitation is on behalf of the union.”) (citations omitted).

1130

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

In declining to adopt a per se rule that an employer may

never enforce a no-solicitation rule if the employer itself

is engaging in antiunion solicitation, the Court noted that

the employer had made exceptions to its no-solicitation

rule in the past for charitable solicitation, and that there

was no evidence that the union or employees had requested such an exception for their own activities. The

Court then found no evidence that the rule diminished

the ability of the unions to carry their message to the

employees. Having previously noted that an employer’s

right to engage in noncoercive antiunion solicitation “is

protected by the so-called ‘employer free speech’ provision of Section 8(c) of the Act,”23 the Court reasoned that

where the union’s opportunities for reaching the employees with its prounion message were “at least as great as

the employer’s ability to promote the legally authorized

expression of his antiunion views, there is no basis for

invalidating [the employer’s] ‘otherwise valid’ rules.”

Id. at 364 (emphasis added). Thus, Nutone reflects the

need to consider an employer’s free speech right to express its views on unionization—a consideration not applicable when determining whether an employer has violated Section 8(a)(1) by allowing employees to communicate on some nonwork-related matters, but not on Section 7 matters. The Nutone Court never discussed the

latter issue, which was not before it. Thus, the majority

grossly overstates the scope of Nutone by contending that

the Court “rejected” the general notion that disparate

treatment of two groups “not similarly situated” undermines the employer’s business justification and therefore

violates Section 8(a)(1). No such discussion appears in

the Court’s decision, and Nutone has little, if any, relevance here.24

Id. at 362. Sec. 8(c) states: “The expressing of any views,

argument, or opinion, or the dissemination thereof, whether in written,

printed, graphic, or visual form, shall not constitute or be evidence of

an unfair labor practice under any of the provisions of this Act, if such

expression contains no threat of reprisal or force or promise of benefit.”

The Board decisions cited by the majority are also inapposite. In

Salmon Run Shopping Center, 348 NLRB 658 (2006), the Board found

that the employer’s exclusion of nonemployee union organizers from

the premises was discriminatorily motivated. Because Salmon Run

involved access by nonemployees, it implicated the employer’s property interests, not just its managerial interests. See id. at 658. Even

aside from that distinction, the fact that the employer in Salmon Run

had a discriminatory motive for excluding the union does not mean that

proof of such a motive is required in order to find a violation.

Enloe Medical Center, 348 NLRB 991 (2006), involved a facially

discriminatory rule (barring union literature, but nothing else, from the

breakroom), not a facially neutral rule that was discriminatorily applied. In any event, the fact that a rule will violate Sec. 8(a)(1) if it

expressly singles out union activity does not establish that an express

“singling out” is required in order to find a violation. In short, Salmon

Run and Enloe are examples of particularly clear-cut and obvious violations, but nothing in those decisions suggests that they limit the circum-

Rather, under the basic Section 8(a)(1) principles discussed above, if an employer wants to “draw a line” between permitted and prohibited e-mails—or, for that matter, between permitted and prohibited bulletin board

postings, telephone calls, or other uses of employer

equipment or media—based on whether the employees

are urging support for “groups” or “organizations,” the

employer must show some legitimate business reason for

drawing that particular line, and that business justification must outweigh the interference with Section 7 rights.

Otherwise, the employer’s rule is completely antithetical

to Section 7’s protection of concerted activity.25 The

Seventh Circuit and majority fail to engage in this analysis. In any event, the Respondent has not offered any

such justification here.

Taken to its logical extreme, the majority’s holding

that an employer need only avoid “drawing a line on a

Section 7 basis” is a license to permit almost anything

but union communications, so long as the employer does

not expressly say so.26 It is no answer to say that a rule

prohibiting all noncharitable solicitations or all solicitations for a group or organizations is not discriminatory

because it would also prohibit selling Avon or Amway

products. The Act does not protect against interference

with those activities; it does protect against interference

with Section 7 activity. Accordingly, we would adhere

to precedent, which properly reflects that principle.

stances under which a violation may be found, redefine “discrimination,” or otherwise modify the Board’s longstanding precedent.

For similar reasons, we reject as utterly meritless the Respondent’s

argument that, because employee Suzi Prozanski sent her e-mails in her

capacity as union president, her right of access to the computer system

must be evaluated under the Lechmere standard governing nonemployee access to an employer’s premises. Prozanski was an employee

as well as the union president. To contend that an employee who engages in activity on behalf of her union no longer has the Sec. 7 rights

of an employee, but only the “derivative” rights of a nonemployee, is

nonsensical. When employees communicate with one another about

union or other Sec. 7 matters, whether or not they act “for” their union,

they are exercising their own, nonderivative Sec. 7 rights. See Nashville Plastic Products, 313 NLRB 462, 463 (1993) (“the rule enunciated

in Lechmere does not apply to employees”).

For example, an employer might prohibit all nonwork-related solicitations by membership organizations. Such a rule would extend

privileges to employee solicitations on behalf of any commercial enterprise and many charities and other activities, but not to employee solicitations on behalf of the union representing the employees—the entity

through which the employees have chosen to vindicate their Sec. 7 right

to engage in concerted activity. In other words, the rule would permit

employees to solicit on behalf of virtually anything except a union.

Yet, on its face, this policy would not “draw the line” on Sec. 7

grounds, and would therefore be lawful. Such a result stands labor law

on its head.

The majority notes that a line drawn out of antiunion motive will

still be unlawful. As noted above, however, motive is not an element of

this type of 8(a)(1) violation.

3. The Respondent violated Section 8(a)(1) even

under the majority’s standard

In any event, even under the majority’s standard, the

Respondent’s enforcement of the CSP was unlawful with

respect to all three of Prozanski’s e-mails: the May 4 email “setting the record straight” about the union rally,

the August 14 e-mail urging employees to wear green to

support the Union, and the August 18 e-mail urging participation in the Union’s entry in a town parade.

First, assuming that Prozanski’s August 14 and 18 emails were “solicitations” and that the Respondent could

lawfully draw a line between “solicitations to support

any group or organization” and other messages, as the

majority contends, that is not the line the CSP drew. By

its terms, the CSP barred all “non-job-related solicitations,” whether or not they urge support for a “group or

organization.” Yet, the Respondent allowed other personal “solicitations”—which violated the terms of the

CSP—while disallowing Prozanski’s union-related “solicitations.”

Second, even the Seventh Circuit recognized that if an

employer allowed notices for anything except unions,

“that is anti-union discrimination by anyone’s definition.” Guardian, supra at 321. In Fleming, the employer

had denied an employee’s request to post a church announcement. 336 NLRB at 202–203. In Guardian, the

employer routinely excluded all “organizational” requests. Here, there is no clear evidence that the Respondent ever enforced the CSP against anything other than

union-related messages. That is unlawful discrimination

“by anyone’s definition.” Guardian, supra at 321.

B. The Respondent’s Discipline of Prozanski

Violated Section 8(a)(3) and (1)

Applying Wright Line,27 the judge found that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings to Prozanski on May 5 and August 22 for

sending union-related e-mails. The majority, finding

Wright Line inapplicable here, affirms the violation as to

the May 5 discipline, but reverses as to the August 22

warning.

We agree with the majority that a Wright Line analysis

is inappropriate. However, for the reasons stated below,

we would find both warnings unlawful.

First, we would find that the CSP’s prohibition on using e-mail for any “nonjob-related solicitations” was

unlawful on its face. Therefore, the discipline of Prozanski on May 5 and August 22 pursuant to that policy was

unlawful. Saia Motor Freight Line, 333 NLRB 784, 785

251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.

denied 455 U.S. 989 (1982), approved in NLRB v. Transportation

Management Corp., 462 U.S. 393 (1983).

1131

(2001) (discipline pursuant to overbroad nosolicitation/no-distribution rule violated Sec. 8(a)(3) and

(1) without consideration of Wright Line).

Alternatively, even assuming the policy was lawful,

we agree with the majority that it was discriminatorily

enforced with respect to the May 4 e-mail. Therefore,

the Respondent’s May 5 discipline of Prozanski for sending that e-mail violated Section 8(a)(3) and (1). As explained above, we would also find that the CSP was discriminatorily enforced with respect to the August 14 and

18 e-mails. Accordingly, the second, August 22 warning

for sending those e-mails also violated Section 8(a)(3)

and (1). See St. Joseph’s Hospital, 337 NLRB 94, 95

(2002) (warning for displaying union-related screen

saver violated Sec. 8(a)(3) where employer allowed other

nonwork-related screen savers), enfd. 55 Fed. Appx. 902

(11th Cir. 2002).

D. The Respondent’s Insistence on an Illegal

Bargaining Proposal

The judge found that the Respondent violated Section

8(a)(5) and (1) by insisting on the proposal known as

counterproposal 26, which stated that the Respondent’s

electronic communication systems could not be used for

“union business.” The majority reverses the judge, finding that the evidence fails to show “insistence” on the

proposal. The majority finds it unnecessary to pass on

whether the proposal was unlawful. We dissent.

First, we agree with the judge that counterproposal 26

was an illegal codification of the Respondent’s discriminatory practice of allowing e-mail use for a broad range

of nonwork-related messages, but not for union-related

messages. Second, for the reasons stated below, we disagree with the majority’s finding of no “insistence.”28

A party may not continue to insist on a nonmandatory

proposal in the face of the other party’s “clear and express refusal” to bargain over it. Laredo Packing Co.,

254 NLRB 1, 19 (1981). Here, the Union responded to

the proposal by stating that it would not respond, because

the proposal illegally restricted Section 7 rights. The

Union also filed an 8(a)(5) charge. After that charge was

dismissed, the Union sought clarification regarding the

scope of the proposal, but still expressed concern that it

was illegal. The majority notes that at an April 21 bargaining session, the Union’s lead negotiator stated that

“I’m here to bargain a proposal.” However, he also

stated at various points during the discussion that “it

makes it very difficult to bargain this issue if we don’t

We do not rely on California Pie Co., 329 NLRB 968, 974 (1999),

cited by the judge to support his finding of insistence. In that case,

there were no exceptions to the finding that the respondent insisted on

an illegal subject.

1132

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

know what would be allowed and what wouldn’t be allowed. . . . In order to bargain it, we need to know how it

would work.” Indeed, at the April 21 session, the Respondent accused the Union of failing to bargain over the

proposal and instead simply “taking notes” to appeal the

dismissal of the first 8(a)(5) charge.

The evidence as a whole, including bargaining notes

from the April 21 session, indicates that the parties had

not begun substantive bargaining over the proposal;

rather, the Union was still seeking clarification of what

the proposal meant. Furthermore, on April 24, 2001, the

Union filed a new 8(a)(5) charge alleging that the Respondent had proposed and “refused to withdraw” counterproposal 26. If the Respondent had any doubt about

the Union’s position after the April 21 bargaining session, the filing and service of the charge put it on notice

that the Union did not want to discuss counterproposal

26. Nevertheless, the Respondent still did not withdraw

the proposal.

Under the above circumstances, we find that the Union

communicated a “clear and express refusal” to bargain

over counterproposal 26, and that the Respondent nevertheless continued to insist on the proposal. Accordingly,

we would adopt the 8(a)(5) violation.

III. CONCLUSION

The majority decision, particularly those portions addressing the maintenance and enforcement of the CSP,

does damage to employee Section 7 rights on multiple

levels. First, the majority fails to heed the Supreme

Court’s instruction that the Board must “adapt the Act to

changing patterns of industrial life”29—here, the explosion of electronic mail as a primary means of workplace

communication. Second, the majority erroneously treats

the employer’s asserted “property interest” in e-mail—a

questionable interest here, in any event—as paramount,

and fails to give due consideration to employee rights

and the appropriate balancing of the parties’ legitimate

interests. Third, the majority blurs the “distinction of

substance” between the rights of employees and those of

nonemployees.30 Finally, the majority discards the

Board’s longstanding test for discriminatory enforcement

of a rule, replacing it with a standard that allows the employer virtually unlimited discretion to exclude Section 7

communications, so long as the employer couches its

rule in facially neutral terms. Accordingly, we dissent.

NLRB v. J. Weingarten, 420 U.S. 251, 266 (1975).

Babcock & Wilcox, supra at 113.

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

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 WILL NOT discriminatorily prohibit employees from

using our electronic communications system to send union-related messages.

WE WILL NOT maintain an overly broad rule prohibiting

employees from wearing or displaying union insignia

while working with customers.

WE WILL NOT issue written warnings to, or otherwise

discriminate against, any employee for supporting the

Eugene Newspaper Guild, CWA Local 37194 or any

other labor organization.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce employees in the exercise of the

rights set forth above.

WE WILL rescind the rule prohibiting circulation department employees from wearing or displaying union

insignia while working with customers.

WE WILL, within 14 days from the date of the Board’s

Order, rescind the unlawful warning issued to Suzi Prozanski on May 5, 2000, remove from our files any reference to the unlawful warning, and, WE WILL, within 3

days thereafter notify Prozanski in writing that this has

been done and that the warning will not be used against

her in any way.

THE GUARD PUBLISHING COMPANY D/B/A THE

L. Michael Zinser, Esq., of Nashville, Tennessee, for the Respondent.

Jill Wrigley, Esq., for the Charging Party.

DECISION

STATEMENT OF THE CASE

JOHN J. MCCARRICK, Administrative Law Judge. This case

was tried in Eugene, Oregon, on November 14–16, 2001, upon

1133

the General Counsel’s second consolidated complaint (the complaint) alleging that The Guard Publishing Company d/b/a The

(5) of the Act by maintaining, promulgating and enforcing an

overly broad no-solicitation policy, by promulgating and maintaining an insignia policy prohibiting display of union insignia

or signs, by discriminatorily enforcing its no-solicitation policy

by warning Suzi Prozanski (Prozanski)1 on May 5 and August

22, 2000,2 and by proposing an illegal subject during collective

bargaining with Eugene Newspaper Guild, CWA Local 37194

(the Union). Respondent filed a timely answer to the complaint

and denied any wrongdoing. On the entire record,3 including

my observation of the demeanor of the witnesses, and after

considering the briefs filed by the parties, I make the following

FINDINGS OF FACT

I. JURISDICTION

The Respondent, an Oregon corporation, publishes a newspaper at its Eugene, Oregon facility, where it annually had

gross sales of goods and services valued in excess of $200,000

and held membership in or subscribed to interstate news services, published nationally syndicated features and advertised

nationally sold products. The Respondent admits and I find

that it is an employer engaged in commerce within the meaning

of Section 2(2), (6), and (7) of the Act and that the Union is a

labor organization within the meaning of Section 2(5) of the

Act.

II. ALLEGED UNFAIR LABOR PRACTICES

A. The Issues

1. Does Respondent’s communications policy constitute an

overly broad no-solicitation rule in violation of Section 8(a)(1)

of the Act?

2. Has Respondent enforced its communications policy in a

discriminatory manner in violation of Section 8(a)(1) of the

Act?

In its answer, Respondent contends that this allegation is not encompassed by the underlying unfair labor practice charges and is timebarred by Sec. 10(b) of the Act. A complaint is not restricted to the

precise allegations of the charge. As long as there is a timely charge,

the complaint may allege any matter sufficiently related to or growing

out of the charged conduct. NLRB v. Fant Milling Co., 360 U.S. 301,

309 (1959). The test that applies for adding related uncharged allegations is stated in Redd-I, Inc., 290 NLRB 1115, 1115–1116 (1988). In

applying the closely related test set forth in Redd-I, the Board looks at

three factors. Whether the untimely allegation involves the same legal

theory as the timely charge. Whether the untimely allegation arises

from the same factual circumstances or sequence of events as the

timely charge. Whether the respondent would raise the same or similar

defenses to both allegations. I find that the allegation in the complaint

is closely related to the timely charge in Case 36–CA–8743.

All dates are in 2000, unless otherwise indicated.

At the end of the trial counsel for the General Counsel without objection requested leave to submit official Board documents to explain

the status of Case 36–CA–8075. On November 20, 2001, counsel for

the General Counsel submitted the order consolidating cases, consolidated complaint and notice of hearing dated February 29, 2000, in Case

36–CA–8075. There being no objection to its introduction into the

record, this document will be received as GC Exh. 63.

3. Has Respondent implemented and maintained an overly

broad rule prohibiting the wearing of union insignia or the display of signs soliciting support for the union in violation of

Section 8(a)(1) of the Act?

4. Did Respondent’s May 5 and August 22 warnings to Prozanski for violating Respondent’s communications policy violate Section 8(a)(1) and (3) of the Act?

5. Did Respondent’s October 25 counterproposal 26 prohibiting use of Respondent’s e-mail systems for union business,

constitute an illegal subject of bargaining which violated Section 8(a)(5) of the Act?

B. The Facts

1. Background

Respondent publishes The Register-Guard, a daily newspaper with circulation in the Eugene, Oregon area. The Union

represents about 150 of Respondent’s employees in the editorial, circulation, business office, display and classified advertising, human relations, promotion, and information systems departments. These departments include, inter alia, reporters,

photographers, copy editors, secretaries, clerks, advertising

department employees, and district managers in the circulation

department. The last collective-bargaining agreement between

Respondent and the Union was for the period October 16, 1996,

to April 30, 1999. Respondent and the Union have been negotiating for a new agreement but have not yet entered into a successor contract.

Respondent began installing a computer and information system at its Eugene facility in March 1996 and had fully implemented the system, with internet and electronic mail (e-mail)

capability in the summer of 1997. All of Respondent’s employees with the exception of 15 district managers have access

to e-mail. While most employees have their own computer

terminal, a few employees, such as the 12 outside salespersons,

share a terminal and have e-mail access.

On October 4, 1996, Respondent promulgated a written

company communications policy that applies to the use of Respondent’s communications systems including telephones,

message machines, computers, fax machines, and photocopy

machines. Under the heading “general guidelines” the policy

provides, “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.” The general guidelines further state that “Improper

use of Company communication systems will result in discipline, up to and including termination.” The initial draft of the

communications policy was issued on September 4, 1996. On

September 12, 1996, the Union requested bargaining over the

use of the electronic communications system. However, there is

no evidence that the parties executed a written agreement reflecting an accord regarding the communications policy.

2. May 5 and August 22 warnings to Prozanski

Respondent has employed Prozanski for about 17 years. She

currently works as a copy editor in the newsroom features department. Prozanski is a member of the Union and has served

as union president since January 2000. In her capacity as copy

editor, Prozanski has her own desk and computer with internet

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and e-mail functions. Prozanski uses e-mail for both work and

nonwork purposes. In her work Prozanski uses e-mail to make

story lists, compile photographs, review stories and to send

memos to coworkers regarding work topics. She also sends and

receives e-mails on a regular basis for nonwork purposes. For

example, Prozanski sends and receives e-mail about union

business or to advise fellow workers she is going on a break.

On May 4, Prozanski, in her capacity as union president, sent

e-mail from her computer at work to about 50 coworkers at

their work e-mail addresses. The e-mail dealt with a rally that

took place on May 1. Prozanski told Respondent’s managing

editor, Dave Baker, she was going to send the e-mail and he

replied, “OK, I understand.” About 5 minutes later, Baker

returned and told Prozanski she should not send the e-mail. On

May 5, Baker issued Prozanski a written warning for violating

the Respondent’s communications policy for sending a unionrelated e-mail on May 4.

On August 14, Prozanski sent e-mail from the union office to

Respondent’s employees at their work e-mail addresses advising them to wear green in support of union efforts to gain a

raise for employees and a contract. On August 18, Prozanski

sent another e-mail from the union office to Respondent’s employees at their work e-mail addresses urging them to participate in the Union’s entry in the Eugene celebration parade. On

August 22, Cynthia Walden, Respondent’s director of human

relations, issued a written warning to Prozanski for sending the

August 14 and 18 Guild-related e-mails to employee workstations in violation of Respondent’s communications policy.

Respondent’s employees testified without contradiction that

both they and their managers used e-mail at work for nonbusiness purposes without reprimand. In addition to Prozanski,

Respondent’s reporters Lance Robertson (Robertson), Randi

Bjornstad (Bjornstad), William Bishop (Bishop), and Kimber

Williams (Williams) sent and received e-mail at work from

employees and managers regarding parties, jokes, breaks,

community events, sporting events, births, meeting for lunch,

and poker games. Respondent’s general manager, Dave Baker

(Baker) admitted that he has received personal e-mail from

other employees and has not disciplined them. Numerous emails were offered into evidence that reflect employees, supervisors and managers have sent and received personal e-mail at

work without discipline. The following e-mails were sent by

managers or supervisors: On March 18, city editor, Margaret

Haberman, e-mailed an unspecified group of employees that

she was throwing a party in honor of her 40th birthday. On

September 1, assistant city editor, Scott McFetridge, sent e-mail

to over 20 employees announcing a going away party. On

March 30, assistant city editor, Lloyd Paseman, e-mailed employees, managers and supervisors seeking someone to walk a

reporter’s dog. On March 14, assistant news editor, Paul

Yarbrough, sent e-mail to employees and supervisors that he

had basketball tickets available. On November 8, deputy managing editor, Carl Davaz, sent e-mail to all employees listing

among other business related items, a birth announcement. On

July 28, graphics editor, R. Romig, announced a party to numerous employees by e-mail. On October 8 and 10, managing

editor, Baker, sent e-mail to all employees announcing the

United Way Campaign and soliciting assistance from employees in the campaign.

3. December 12—Kangail’s armband and placard

Ronald Kangail (Kangail) worked for Respondent as a district manager since 1977. He is a member of the Union and is

part of the bargaining unit. As a district manager Kangail deals

with newspaper carriers, subscribers and businesses in his district and also in his office. While in the field, Kangail drives his

own vehicle. Neither Kangail nor any of the other district managers are required to wear a uniform when dealing with the

public. In his office at Respondent’s facility, Kangail has union

material displayed that he has not been required to remove.

In November Kangail began to wear a green armband to

show support for the Union and to demonstrate the Union did

not have a contract with Respondent. At the same time he displayed a green placard in the window of his vehicle while

working in the field. The placard was 8-1/2 by 11 inches in

size and stated:

WORKERS AT THE

DESERVE A FAIR CONTRACT!

SUPPORT THE

EUGENE NEWSPAPER GUILD.

Want to help? Call 343-8625.

On December 12, Kangails’ supervisor, Zone Manager Steve

Hunt (Hunt) told Kangail to remove the armband from his arm

and the placard from his car when he was in the field. Kangail

complied with the directive. Other district managers wore insignia while in the field including hats with the logos of football teams and the Marine Corps and shirts displaying college

names. Respondent has no written policy or rules concerning

the display of insignia or signs at work. There was contradictory testimony from Advertising Director Michael Raz (Raz)

and Circulation Director Charles Downing (Downing) concerning exactly what Respondent’s policy was concerning wearing

insignia when dealing with the public. Raz said the policy was

that, “. . . employees could not wear or exhibit indicia that are

controversial in nature, or partisan or political, or in—otherwise

represent the company in a negative context.” Downing testified that the policy was, “That while in the execution of their

duties in the field, they’re not to wear anything that is not appropriate to the business.”

4. October 26—Respondent proposes contract language

prohibiting unit employees from using Respondent’s

electronics communications systems for union matters

On about October 25, during the course of bargaining for a

new collective-bargaining agreement, Respondent proposed the

following contract language:

Company Counterproposal No. 26

October 25, 2000

Article XVII

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Section 8. Electronic Communications Systems—The electronic communications systems are the property of the Employer and are provided for business use only. They may not

be used for union business.

On November 15, Respondent clarified its position with respect to Company counterproposal 26. In a statement of position Respondent reaffirmed that it's “contract proposal only

prohibits use of the systems for union business.” The position

statement added, “Attached to this statement of position is the

Company’s current Communication’s [sic] Policy. It is our

intention that this attached policy will govern the use of systems in situations ‘other than’ union business.” On November

16, the Union responded that it would not reply to Company

counterproposal 26 since it illegally restricted employees’

rights to concerted activity in the workplace. Two weeks later,

the Union filed a charge in Case 36–CA–8789 on November

30, 2001, alleging that Respondent violated Section 8(a)(5) of

the Act by making company counterproposal 26. The Region

dismissed the charge on March 30, 2001, and the Union filed an

appeal to the General Counsel. On August 13, 2001, the Region revoked the dismissed charge in Case 36–CA–8789.

Meanwhile the Union asked Respondent for further clarification of company counterproposal 26. In a letter dated April 9,

2001, the Union asked Respondent to address four questions.

The letter asks in pertinent part:

1. Does the e-mail ban apply to bargaining unit members who are discussing “union business” or solely to

elected officers and representatives of the Guild?

2. Does “union business” include the expression of

ideas and opinions by bargaining unit members regarding

the Guild in its representative role? Would it ban employee use of e-mail to critique the course of ongoing contract negotiations or the terms of the collective bargaining

agreement? To discuss the Guild’s position in bargaining?

To discuss the Guild’s handling of employee grievances?

To discuss the status of an unfair labor practice charge or

an arbitration matter being pursued by the Guild on behalf

of the bargaining unit?

3. Does the e-mail ban cover workplace discussion by

co-workers of candidates for Guild office? The expression

of employee opinion to co-workers on the quality of representation being offered by the Guild? Could a RegisterGuard worker properly communicate by company e-mail

to a co-worker criticism or opinion regarding Guild action

as bargaining representative of the actions of its elected officers?

4. Could a Register-Guard employee use the company

e-mail to discuss the merits of a proposed Guild dues increase?

Respondent replied in writing on April 21, 2001. This response stated in pertinent part:

We will now attempt to answer your questions in the

order asked:

1. The proposal applies to all employee[s] covered by

the contract as well as officers and representatives.

2. As a general rule the proposal will apply to all union business. We are not going to, in advance, try to prejudge all possible hypothetical acts and circumstances.

See final paragraph below.

3. Same as answer number 2.

4. No.

By agreeing to this proposal we are not asking the union to waive any rights employees may hypothetically

have regarding the selection of a new union and/or to decertify Guild Local 194. This proposal is intended to

cover the conduct of union business and the employees

represented by this union under this contract while it

represents them. We express, with this proposal, no position with respect to use of our systems in that circumstance because we are not bargaining about that circumstance. Whatever our position is in that regard we will

make that decision at the time that the circumstances present itself, but independent of Company Counterproposal

No. 26.

Also on August 21, 2001, a bargaining session took place between the Union and Respondent. Attorney L. Michael Zinser

and Director of Human Relations Cynthia Walden represented

Respondent. Lance Robertson represented the Union. Union

member Randi Bjornstad contemporaneously recorded bargaining notes of this session. The notes reflect that Zinser advised

that counterproposal 26 applied to all members of the bargaining unit who were discussing any union business. Zinser further said that counterproposal 26 would not address the issue of

employee attempts to decertify the Union. To date Respondent

has not withdrawn counterproposal 26. After all witnesses had

been called, Zinser took the stand and testified over the objection of the General Counsel and the Charging Party. Zinser

denied that on August 21, 2001, he said Respondent’s e-mail

system could be used to decertify the Union.

C. The Analysis

1. Respondent’s communications policy

The General Counsel and the Union contend that Respondent’s maintenance of its communications policy is an overbroad prohibition on employees’ rights to make solicitations

regarding Section 7 subjects. Both the General Counsel and the

Union argue that the employer’s computers and computer systems, including e-mail, constitute a work area within the meaning of Republic Aviation Corp.4 Since the communications

policy ban on nonbusiness use of e-mail includes solicitation

and is not limited to working time, it is presumptively unlawful.

Respondent argues that it has a right to prohibit the use of its

personal property for nonbusiness purposes and that the Union

agreed to the communications policy.

a. The law

The Board has generally found that an employer may validly

limit employee use of its communications equipment. The

Board has held that employees have no statutory right to use an

employer’s equipment or media. Mid Mountain Foods, Inc.,

51 NLRB 1186 (1943), enfd. 142 F.2d 193 (2d Cir. 1944), affd.

324 U.S. 793 (1945).

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

332 NLRB 229, 230 (2000). Thus the Board has found no

violation in nondiscriminatory limits on the use of employer

bulletin boards,5 telephones,6 public address systems,7 video

equipment,8 and e-mail.9

b. The analysis

While the General Counsel and the Charging Party argue that

Respondent’s e-mail system amounts to a workplace and that

employee solicitation cannot be totally banned without justification, I find the argument misplaced. The Board has yet to

hold that an e-mail system owned by an employer constitutes a

workplace where an employer is prohibited from limiting all

employee Section 7 solicitation. Rather, the Board has consistently found that employers may nondiscriminatorily limit the

use of their communications equipment without infringing on

employees’ rights to solicit for Section 7 purposes. I find that

Respondent’s communications policy is not a facially overbroad no-solicitation/no-distribution rule but rather a valid limit

on the use of its communications equipment. I will dismiss this

portion of the complaint.

2. The May 5 and August 22 discipline of Prozanski

Both the General Counsel and the Charging Party argue that

Respondent’s communications policy was applied to Prozanski

in a discriminatory fashion. Thus they contend that the implementation of the policy itself violated Section 8(a)(1) of the

Act. Since Respondent applied the communications policy to

Prozanski due to her activities on behalf of the Union, the General Counsel and the Charging Party take the position Respondent violated Section 8(a)(3) of the Act. Respondent contends

that it applied its communications policy in a uniform manner

that limited all use of its e-mail system by third-party organizations. Thus, its discipline of Prozanski was neither a violation

of Section 8(a)(1) or (3) of the Act.

a. The law

While an employer may limit the personal use of its property

by employees, it may not do so in a manner that discriminates

against employees’ Section 7 rights. In a case involving the use

of an employer’s e-mail system, the Board in E. I. du Pont de

Nemours & Co., 311 NLRB 893, 919 (1993), found that the

employer violated Section 8(a)(1) of the Act by allowing use of

its e-mail system by employees for a wide variety of personal

subjects but prohibited employees from using e-mail to distribute any union material.

Section 8(a)(3) of the Act prohibits employers from discriminating in regard to an employee’s “tenure of employment

Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th

Cir. 1983).

Union Carbide Corp., 259 NLRB 974, 980 (1981), enfd. in relevant part 714 F.2d 657, 663–664 (6th Cir. 1983).

Heath Co., 196 NLRB 134 (1972).

Mid Mountain Foods, Inc., supra.

Adtranz AAB Daimler-Benz Transportation NA, Inc., 331 NLRB

291 (2000). In affirming the ALJ’s decision, the Board noted that no

exceptions were filed to the judge’s finding that Respondent’s ban on

nonbusiness use of its e-mail system did not violate Sec. 8(a)(1) of the

Act.

. . . to encourage or discourage membership in any labor organization.”10

In 8(a)(3) cases the employer’s motivation is frequently in

issue, therefore the Board applies a causation test to resolve

such questions. Wright Line, 251 NLRB 1083, 1088 (1980).

The Wright Line test requires the General Counsel to make a

prima facie showing sufficient to support an inference that the

employee’s protected conduct motivated the employer’s adverse action. “The critical elements of discrimination cases are

protected activity known to the employer and hostility toward

the protected activity.” Western Plant Services, 322 NLRB

183, 194 (1996). Although not conclusive, timing is usually a

significant element in finding a prima facie case of discrimination. Id. at 194.

If the General Counsel successfully presents a prima facie

case of discrimination, the burden then shifts to the employer to

persuade the trier of fact that the same adverse action would

have occurred even in the absence of the employee’s protected

activity. Western Plant, supra. To meet this burden, “an employer cannot simply present a legitimate reason for its action

but must persuade by a preponderance of the evidence that the

same action would have taken place even in the absence of the

protected conduct.” Roure Bertrand Dupont, Inc., 271 NLRB

443 (1984).

b. The analysis

The record is replete with evidence of personal use of Respondent’s e-mail system by its employees and managers both

before and after Respondent disciplined Prozanski. Respondent’s argument that it limited all e-mail use by third party

organizations, including the Union, misses the mark. First,

there is evidence that Respondent permitted third party organizations such as Weight Watchers and United Way access to email; second, the Board has drawn no distinction between nonbusiness use of communications equipment by third party organizations as opposed to personal use by employees. If an

employer allows employees to use its communications equipment for nonwork related purposes, it may not validly prohibit

employee use of communications equipment for Section 7 purposes. Fleming Co., 336 NLRB 192, 194 (2001). The evidence reflects Respondent has failed to enforce its communications policy. It has permitted personal use of e-mail for a wide

variety of nonbusiness purposes. Having permitted a plethora

of nonbusiness uses of e-mail, Respondent cannot validly prohibit e-mail dealing with Section 7 subjects. Respondent’s

argument that Prozanski’s use of e-mail was a more egregious

violation of the communications policy since they were sent to

multiple persons (spam) is without merit. First, the practice of

sending e-mail to multiple recipients was common practice by

both employees and managers. Second, there has been no evidence that sending e-mail to many addressees has any adverse

impact on discipline or production. I find Respondent’s enforcement of its communications policy in the May 5 and August 22 discipline of Prozanski violated Section 8(a)(1) of the

Act.

29 U.S.C. § 158(a)(3).

1137

It is clear that Prozanski was engaged in union activity at the

time she sent her e-mail messages on May 4 and August 14 and

18. She sent the e-mail to union members on behalf of the

Union. Moreover, there is no dispute that Respondent was

aware of Prozanski’s union activity. Respondent noted in the

disciplinary letters of May 5 and August 22 that Prozanski was

engaged in Guild activity when she sent the e-mail. Respondent stated in both disciplinary letters that Prozanski was being

disciplined for sending the union-related e-mail in violation of

its communications policy. The General Counsel has established each prima facie element of its case establishing Respondent disciplined Prozanski in violation of Section 8(a)(3)

of the Act. The burden shifts to Respondent to prove that it

would have disciplined Prozanski even in the absence of her

union activity.

Respondent’s defense is based upon a faulty premise. It assumes that the communications policy was enforced in a consistent, nondiscriminatory fashion. As noted above, the communications policy was observed in the breach not the enforcement. Having permitted a wide variety of nonbusiness use

of its e-mail, Respondent cannot rely on this policy to establish

it would have disciplined Prozanski in the absence of her union

activity. I find Respondent’s May 5 and August 22 discipline

of Prozanski violated Section 8(a)(3) of the Act.

3. Respondent’s insignia policy

The General Counsel and Charging Party contend that Respondent violated Section 8(a)(1) of the Act by enforcing an

unwritten insignia policy that prohibited employee Ronald

Kangail from wearing union insignia and displaying a union

placard at work. Respondent argues that it had the right to

prohibit employees from wearing and displaying union insignia

when dealing with the public.

Kangail’s armband and placard in his auto while dealing with

the public. Thus, no probative evidence was adduced that Kangail’s display adversely affected Respondent’s business, employee safety, or employee discipline. Moreover, Respondent’s

vague, unwritten insignia policy has not been enforced in a

wide variety of other situations. District managers wore insignia, including baseball caps and shirts with various logos, while

dealing with the public. I find that by promulgating and enforcing its unwritten insignia rule prohibiting the display of union

insignia in December 2000, Respondent violated Section

8(a)(1) of the Act.

4. The October 25 counterproposal 26

The General Counsel and the Charging Party argue that Respondent’s counterproposal is an illegal subject of bargaining.

It is argued that Respondent’s continued insistence on counterproposal 26 in collective bargaining violated Section 8(a)(5) of

the Act. Respondent contends that counterproposal 26 is a

mandatory subject of bargaining. Consequently, there is no

violation of Section 8(a)(5) of the Act.

a. The law

Respondent contends that counterproposal 26 must be read

in conjunction with the entire communications policy that applies to all employees. Its argument seems to be that the union

ban on use of communications equipment in counterproposal

26 is part and parcel of the companywide ban on all nonbusiness use of communications equipment. This argument

might hold water but for the fact that there was no enforcement

of the communications policy on nonbusiness use, other than

union use, of communications equipment. Consequently, Respondent’s counterproposal 26 is an unlawful codification of a

discriminatory policy and constitutes an illegal subject of bargaining.11 The Union repeatedly objected to this counter proposal and filed an unfair labor practice charge with the Board.

The Region dismissed this charge and later revoked the dismissal. Respondent’s refusal to withdraw its illegal proposal

violated Section 8(a)(5) of the Act.

While working, an employee’s right to wear and display union insignia is protected by Section 7 of the Act. Republic

Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Albertson’s,

Inc., 319 NLRB 93, 102 (1995). This right is balanced against

an employer’s right to operate its business. An employee’s

right to wear insignia can be limited or prohibited only if the

employer can show such a ban on Section 7 rights is mandated

by “special circumstances.” Mack’s Supermarket, 288 NLRB

1082, 1098 (1988). Such special circumstances include employee safety, protecting the employer’s product or image, and

ensuring harmonious employee relations. Nordstrom, Inc., 264

NLRB 698, 700 (1982). Mere exposure of customers to union

insignia does not constitute a special circumstance. Flamingo

Hilton-Laughlin, 330 NLRB 287 (1999).

b. The analysis

There is no dispute that Kangail was wearing union insignia

and displaying a union placard in his car while working for

Respondent and dealing with the public. Nor is there any controversy that Respondent directed Kangail to re

This text is long and has been trimmed here. Open the source document for the complete record.

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