This entry was co-authored by Philip L. Gordon.
Employers, for the most part, are the kings of the road when it comes to regulating the use of their electronic resources. However, several recent cases suggest that the National Labor Relations Board (NLRB or “the Board”) may soon be playing the role of traffic cop on the employer-provided segment of the information highway. In Media General Operation v. NLRB, the Fourth Circuit affirmed the NLRB’s finding of an unfair labor practice against a newspaper which had instructed union members to stop using the company’s e-mail system to distribute union-related messages. The Fourth Circuit relied upon the well established rule that an employer who permits any non-union use of its e-mail system — even if that non-union use violates a business-use only policy — cannot discriminate against union-related communications. Around the same time, the Board heard oral arguments on the question whether employers violate the National Labor Relations Act (NLRA) by enforcing a prohibition against all non-business use — whether union or non-union — of their e-mail system. See Guard Publishing Co. d/b/a The Register-Guard.
On September 10, 2007, the Board highlighted another NLRA-based restriction on the ability of employer’s to set rules for employee use of employer-provided electronic resources. The Board held that a union employer violated the NLRA by implementing a revised e-mail policy without first reaching agreement or impasse with the union. This ruling will be a speed bump for unionized employers struggling to keep current their policies regulating the use in the workplace of rapidly evolving communications technology and of an ever expanding menu of personal “gadgets” (iPods, Blackberries, camera phones, etc.).
The recent decision involved California Newspaper Partnership d/b/a ANG Newspapers (ANG), a publisher of five newspapers in the San Francisco Bay Area. The newspaper company faced a grievance from the Media Workers’ Union for disciplining a reporter who had sent an e-mail to several other union members/employees about union matters in violation of ANG’s policy prohibiting all employees from sending such “broadcast e-mails” on any subject matter. The union attacked the discipline by arguing that the policy which the reporter allegedly had violated (the “ challenged policy”) was unlawful. To support that position, the union contended that the challenged policy was a revision of a prior policy and that the newspaper had commenced bargaining over the challenged policy but implemented it unilaterally before reaching agreement or impasse with the union.
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Philip Gordon
Chair
