Workplace Cyberspace - Going Where No Board Has Gone Before

Employee Relations Law Journal

Volumn 25, Issue 2, 1999, Pages 53-70

  Yager, Daniel V ^a,b   Threlkeld, Thomas S ^b  

^a LPA Inc ^*

^b LPA Inc   (United States)

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[No Author keywords available]

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EID: 0010037352     PISSN: 00988898     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (34)

1. Joe Ward, "Internet Helps Drive To Organize Bookstore Labor," Louisville Courier-Journal, Jan. 30, 1998 (quoting UFCW organizer Bruce Finley).
2. Pamela Mendels, "Union Organizing Workers Via E-mail," New York Times, June 30, 1997 (quoting UFCW organizer Matthew Pavesi).
3. Pamela Mendels, "Union Organizing Workers Via E-mail," New York Times, June 30, 1997.
4. Id.
5. Id.
6. Joe Ward, "Internet Helps Drive To Organize Bookstore Labor," Louisville Courier-Journal, Jan. 30, 1998.
7. Id.
8. Id.
9. Babcock & Wilcox (cited on p. 55).
10. We note that federal law does not define an employer's real property rights, even where the issue arises under a federal statute. Thus, the Board and courts will look to the state law in which the property is located to determine the company's property interests. Most, if not all, state real property laws include the right to exclude others. However, the extent to which the right to exclude applies to commercial operations open to the public could vary from state to state. Thus, the company's ability to exclude non-employee union organizers in any particular case is protected by the Board only to the extent that it would otherwise be protected under state law.
11. As discussed further below, however, an employer's rule against non-employee access may be found unlawful if it is enforced in a discriminatory manner. Thus, where the employer permits access to the property by any non-employee groups, the Board frowns upon prohibiting similar access by non-employee union organizers. See Big Y Foods, 315 N.L.R.B. 1083 (1994). The Board's interpretation of discrimination in this context has not been uniformly adopted by the federal courts. Compare Cleveland Real Estate Partners v. NLRD, 95 F.3d 457 (6th Cir. 1996) (irrelevant that employer allows access to non-union organizations; proper inquiry is whether employer allowed access to other unions or anti-union groups) with Lucile Salter Packard Children's Hosp. v. NLRB, 97 F.3d 583 (D.C. Cir. 1996) (endorsing the Board's rule that access by non-union groups should be considered in the discrimination analysis).
12. 29 U.S.C. §157 (emphasis added).
13. See, e.g., NLRD v. Washington Aluminum Co., 370 U.S. 9 (1962).
14. Finlay Bros. Co., 282 N.L.R.B. 737, 739 (1987).
15. The employee's calculations ultimately turned out to be correct. After reviewing these calculations, the company admitted the error and modified the plan accordingly. The NLRB administrative law judge found that the miscalculation was an honest mistake and that the company had not intended to deceive the workers.
16. See, e.g., Union Carbide Corp. v. NLRB, 714 F.2d 657, 663 (6th Cir. 1983) (company "unquestionably had the right to regulate and restrict employee use of company property"); Union Carbide Corp., 259 N.L.R.B. 974, 976 (1981) (employer "could unquestionably bar its telephones to any personal use by employees"); Container Corp. of Am., 244 N.L.R.B. 318 (1979) ("It is well-settled that there is no statutory right of employees or a union to use an employer's bulletin board"); Champion Int'l Corp., 303 N.L.R.B. 102, 109 (1991) (employer has a "basic right to regulate and restrict" worker use of the company copier machine); Electronic Data Sys., Inc., 24 A.M.R. (LRP) ¶ 34046 (NLRB GC Mar. 22, 1995) ("it is well-settled that an employer may restrict and regulate employee use of company property . . . to only business purposes").
17. Union Carbide, 714 F.2d at 661; Container Corp. of Am., 244 N.L.R.B. at 320.
18. Electronic Data Sys., Inc., 24 A.M.R. (LRP) 134046 (NLRB GC Mar. 22, 1995).
19. See, e.g., Union Carbide, 714 F.2d at 663 (employer could not prohibit use of the phones for union-related activity where it permitted other non-business use); Container Corp. of Am., 244 N.L.R.B. at 320 (same regarding use of bulletin boards); Champion Int'l Corp., 303 N.L.R.B. at 109 (same regarding use of copier machines).
20. Fred Feinstein, Acting General Counsel, Report of the General Counsel for the Period of Mar. 31, 1996 Through June 30, 1998, reprinted in Daily Lab. Rep. No. 172, at E-4 (Sept. 4, 1998). Indeed, most of the commentary in the cyber-organizing area has approached the issue from the solicitation/distribution perspective. See, e.g., Mark A. Spognardi & Ruth Hill Bro, "Organizing Through Cyberspace: Electronic Communications and the National Labor Relations Act," 23 Empl. Rel. L.J. 141 (1998); Donald H. Seifman & Craig W. Trepanier, "Evolution of the Paperless Office: Legal Issues Arising Out of Technology in the Workplace," 21 Empl. Rel. L.J. 5 (Winter 1995/1996).
21. Fred Feinstein, Acting General Counsel, Report of the General Counsel for the Period of Mar. 31, 1996 Through June 30, 1998, reprinted in Daily Lab. Rep. No. 172, at E-4 (Sept. 4, 1998). Indeed, most of the commentary in the cyber-organizing area has approached the issue from the solicitation/distribution perspective. See, e.g., Mark A. Spognardi & Ruth Hill Bro, "Organizing Through Cyberspace: Electronic Communications and the National Labor Relations Act," 23 Empl. Rel. L.J. 141 (1998); Donald H. Seifman & Craig W. Trepanier, "Evolution of the Paperless Office: Legal Issues Arising Out of Technology in the Workplace," 21 Empl. Rel. L.J. 5 (Winter 1995/1996).
22. See, e.g., Ichikoh Mfg., 312 N.L.R.B. 1022 (1993).
23. Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1251 (5th Cir.), cert. denied, 506 U.S. 985 (1992).
24. Cannondale Corp., 310 N.L.R.B. 845 (1993).
25. Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615 (1962).
26. Ideal Macaroni Co., 301 N.L.R.B. 507 (1991). ]
27. See Feinstein, note 20, at E-4, E-5 (employer's computer networks were "'work areas' within the meaning of Republic Aviation and Stoddard-Quirk" ).
28. See Rose Co., 154 N.L.R.B. 228, 229 n.1 (1965 ).
29. Feinstein, note 20, at E-4, E-5 (citations omitted).
30. As we explain, the General Counsel's conclusion here contradicts an earlier conclusion that such policies are entirely lawful.
31. Patrick Hardin, ed., I Developing Labor Law 90 (3d ed. 1992) (emphasis added).
32. Goldblatt Bros., 77 N.L.R.B. 1262 (1958).
33. Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978).
34. Feinstein, note 20, at E-4, E-5.