E-mail Solicitation

1
E-mail Solicitation

• Is an e-mail system
• employees work area in which ees may discuss
  unionization?
• employer equipment that employer may control for
  its own use?

2
E-Mail Policy

• Company communication systems and the equipment
  used to operate the communication system are
  owned and provided by the Company to assist in
  conducting the business of The Register-Guard.
  Communications systems are not to be used to
  solicit or proselytize for commercial ventures,
  religious or political causes, outside
  organizations, or other non-job-related
  solicitations.

3
Chronology

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

4
Compare Description of Facts

• Board Decision

• Court Decision

• The Respondent's employees use e-mail regularly
  for work-related matters. Throughout the relevant
  time period, the Respondent was aware that
  employees also used e-mail to send and receive
  personal messages. The record contains evidence
  of e-mails such as baby announcements, party
  invitations, and the occasional offer of sports
  tickets or request for services such as dog
  walking. However, there is no evidence that the
  employees used e-mail to solicit support for or
  participation in any outside cause or
  organization other than the United Way, for which
  the Respondent conducted a periodic charitable
  campaign. (183 LRRM 1113 at 1115)

• While Register-Guard employees used e-mail
  regularly for work-related matters, the Board
  found that Throughout the relevant time period,
  the Register-Guard was aware that employees
  also used e-mail to send and receive personal
  messages. The record contains evidence of e-mails
  such as baby announcements, party invitations,
  and the occasional offer of sports tickets or
  request for services such as dog walking. . . .
  Employees sent and received e-mail regarding
  parties, jokes, breaks, community events,
  sporting events, births, meeting for lunch, and
  poker games, and did so without reprimand. . .
  . Managing editor Dave Baker admitted that he
  has received personal e-mail from employees and
  has not disciplined them. Id. Among other
  nonwork-related e-mails, Baker himself sent at
  least two e-mails seeking volunteers for the
  newspaper's annual United Way campaign.

5
Two Questions First Question

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

6
Two Questions Second Question

• Question Was the policy applied in a to union
  activity such that its application violated
  8(a)(1) and 8(a)(3)
• Answer Yes

7
May 4 Correction E-Mail

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

8
August 14 and August 18 E-mail Message

• These e-mails were solicitation but enforcement
  was discriminatory
• Employer had permitted e-mail messages for other
  kinds of solicitations (sports tickets)
• Boards distinction between soliciting for
  organizations and soliciting for other purposes
  was not relied on by employer
• Policy did not make distinctions among purposes
  of solicitation
• a post hoc invention

9
Arm Band and Union Insignia

• Generally may not be prohibited unless special
  circumstances are shown
• Safety
• Product Protection
• Employer Image
• General customer contact not sufficient to
  overcome general prohibition
• Burden on employer and not satisfied
• Limited customer contact so no image issue