As as parting shot from the Bush administration at unions, the
National Labor Relations Board has decided that it's fine for employers to
tell employees that they can't use company e-mail for union-related matters,
because employers have property rights over the e-mail system they provide.
But the National Labor
Relations Act gives workers the right to organize and bargain collectively.
The effect of this is to acknowledge that employers' property rights are not
always the most important concern. Things like Weingarten rights
impose requirements on the employer and dictate how they have to use their
time, money, and office space.
Employers have previously been able to restrict union access to things like
bulletin boards and copy machines, but only so long as that restriction was
nondiscriminatory -- no personal or outside organization use of those
resources. This decision changes that, and says that it's okay to discriminate
against union use of these resources while allowing other non-work-related uses
of them. It's the employer's call.
I don't understand how they can say that employers have to permit oral
communication of organizing information on nonwork time in nonworking areas
like break rooms -- which technically imposes on employer property rights --
but allow a separate standard prohibiting e-mail, which is a standard form of
communication in many workplaces. It is especially strange considering how
preposterous any arguments about resource consumption stemming from union
e-mails would be. What exactly is the effect on property rights?
I agree with Professor Jeremy Hirsch that this decision is nonsensical
and awful, and that "the idea that an employer can control use of its
personal property any way it chooses is counter to property law." This ruling
chills union speech and organizing in a discriminatory fashion, which is
exactly what the NLRA was supposed to prohibit. Thankfully this was in the last
batch of decisions for this NLRB -- we can only hope for a more even-handed
board after the next presidential election.