In a 3-to-2 ruling released on Friday, the board held that it was legal for employers to prohibit union-related e-mail so long as employers had a policy barring employees from sending e-mail for “non-job-related solicitations” for outside organizations.
The ruling is a significant setback to the nation’s labor unions, which argued that e-mail systems have become a modern-day gathering place where employees should be able to communicate freely with co-workers to discuss work-related matters of mutual concern.
The ruling involved The Register-Guard, a newspaper in Eugene, Ore., and e-mail messages sent in 2000 by Suzi Prozanski, a newspaper employee who was president of the Newspaper Guild’s unit there. She sent three e-mail messages about marching in a town parade and urging employees to wear green to show support for the union in contract negotiations.
During the years that this case was pending, many companies were uncertain whether they could bar union-related e-mail. But the labor board’s decision gives companies nationwide the green light to prohibit union-related e-mail as part of an overall nonsolicitation policy.
“An employer has a ‘basic property right’ to regulate and restrict employee use of company property,” the board’s majority wrote. “The respondent’s communications system, including its e-mail system, is the respondent’s property.”
Labor leaders attacked the decision, calling it part of board rulings that have favored employers and undercut workers.
“Anyone with e-mail knows that this is how employees communicate with each other in today’s workplace,” said Jonathan Hiatt, general counsel for the A.F.L.-C.I.O. “Outrageously in allowing employers to ban such communications for union purposes, the Bush labor board has again struck at the heart of what the nation’s labor laws were intended to protect — the right of employees to discuss working conditions and other matters of mutual concern.”
The ruling comes as the nation’s labor unions continue to struggle to reverse their membership declines. They represent just 12 percent of the nation’s work force, down from 35 percent in the 1950s.
The two board members who dissented asserted that the employees’ interest in communicating with other employees about union activity and other collective concerns should, with regard to the e-mail system, outweigh the employer’s property interest.
They wrote, “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.”
The majority’s decision was dated last Sunday, the day the board’s chairman, Robert J. Battista, stepped down because his term expired. President Bush has not renominated Mr. Battista, with many Democrats threatening not to reconfirm him because he has been part of so many anti-union rulings.
The board overturned several decisions it had made in ruling that an employer does not illegally discriminate against pro-union speech if it lets employees use e-mail for personal communications but bars them from using e-mail for solicitations for outside organizations.
Adopting the reasoning of the United States Court of Appeals for the Seventh Circuit, involving two cases concerning the use of employer bulletin boards, the labor board distinguished between personal non-work-related postings like for-sale notices and wedding announcements, on the one hand, and group or organizational postings like union materials on the other.
In many past cases, the labor board ruled that employers engaged in illegal anti-union discrimination if they barred workers from engaging in union-related speech on bulletin boards or telephones when they allowed workers to communicate on bulletin boards or telephones about other matters.
In its new ruling, the board’s majority wrote that employers can allow workers to use e-mail for personal communications while barring them from organizational-related communications. The majority redefined the meaning of discrimination and wrote that the Seventh Circuit’s approach “better reflects the principle that discrimination means the unequal treatment of equals.”
Adopting another new policy, the board appeared to allow employers to bar e-mail for certain organizational activities, like promoting a union or Avon products, but not organizational activities related to charities.
The dissenters said the majority’s decision, in allowing employers to bar solicitation with regard to some activities and not others, “would allow employees to solicit on behalf of virtually anything except a union.”