Ken Dolin Published in The National Law Journal
"The Register Guard"

The April 23, 2007 issue of the National Law Journal includes an article by Ken, "The Register Guard" in which he notes: "The National Labor Relations Board is considering what right employees have to use their company's e-mail system to communicate with each other about union activity and what restrictions an employer may place on union-related communications. . . .Access to employees in the workplace is frequently a threshold concern in a union organizing campaign. The NLRB and the courts have sought to accommodate the right of self-organization assured to employees and the equally undisputed right of employer to maintain discipline in their operations. . . . The rationale for these solicitation rule presumptions is that "working time is for work," but the time outside working time "is an employee's time to use as he likes without unreasonable restraint," even when he is on company property. A rule presumptively valid on its face is also presumptively valid as to its promulgation and enforcement, but these presumptions can be rebutted by evidence establishing a discriminatory purpose in adopting or applying the rule. Separate and apart from employee solicitations in the workplace, employers generally may prohibit their employees' use of company property, such as copy machines and bulletin boards, for communication purposes, even during nonworking time. However, an employer may not promulgate or enforce such use restrictions in ways that "unlawfully discriminate" against union communications. . . . Employees would appear to have no right to use their employee's e-mail system to communicate with other employees about union activity because, as ... there is no right to use any employer property such as telephone, copy machine and bulletin boards for communication purposes. Although the board has traditionally found that an employer has acted unlawfully if it permits nonjob-related communications but not these related to the union, it can be argued that permitting such activities as employee solicitation for Girl Scout cookies, etc., are "beneficial to all employees," while union solicitations are much more disruptive to the workplace. The board has been conspicuously silent about the high court's Perry decision and does not attempt to reconcile it with its broad view of unlawful discrimination. . . . In this regard, it can be argued that, consistent with ... certain circuit courts, unlawful discrimination should be limited to discrimination among comparable activities; e-mail communications for charitable, civic and even commercial purposes are not comparable to union activities because such actions are beneficial to all employees and are less disruptive to the workplace than union activities; and therefore, allowing such nonbusiness-related e-mail communications while banning union e-mails should not be found unlawful discrimination. As the Supreme Court found no unlawful discrimination against banning union communications while permitting other types of nonbusiness-related communications, so too, unlawful discrimination in this context could be limited to situations in which employers apply a communications ban disparately against one union but not another, or allow employee anti-union-related communications, while prohibiting employee pro-union-related communications.