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NLRB Limits Ability of Company to Unilaterally Implement Email Policy

In California Newspapers P’Ship d/b/a ANG Newspaper, 350 NLRB No. 89 (September 10, 2007), the National Labor Relations Board held that a California newspaper publisher violated federal labor law by implementing a revised email policy without bargaining with the union representing its employees.

The bargaining agreement in this case between the Company and Union contained a management rights clause which allowed the Company to implement rules governing employee conduct and a generally worded “zipper clause” which foreclosed bargaining over items not in the agreement. In January 2001, the Company issued a policy for email use. The bargaining agreement did not otherwise include a provision addressing employee use of the Company email system. When the Union objected to the policy’s prohibition on broadcast messages and solicitations, the Company responded that its actions were authorized by the management rights clause in the bargaining agreement. After a meeting between Company officials and Union representatives, the Company pulled back the policy to review it for any potential changes. The Company then issued a revised email policy in June of 2001, that retained the prohibition on broadcast messages and solicitations. The Union objected to the policy and filed an unfair labor practice charge which argued that the Company violated the National Labor Relations Act by issuing the email policy without the consent or agreement of the Union in violation of Section 8(a)(5) of the Act. Section 8(a)(5) states that it is an unfair labor practice for an employer to refuse to bargain collectively with the representatives of its employees over mandatory issues of bargaining such as wages, hours and working conditions. The Company argued that the management rights clause permitted the Company to issue the email rule under its right to implement rules governing employee conduct and that the zipper clause foreclosed the Union’s right to bargain over unnamed topics.

The Board summarily rejected the Company’s position and held that the Company acted unlawfully by instituting the revised policy because the contract terms were insufficient to constitute a “clear and unmistakable waiver” of the Union’s right to bargain. The Board also held that for a waiver of bargaining rights to be found, the subject matter at issue must have been fully discussed and explicitly explored during negotiations. The provision dealing with the Company’s general right to implement rules regarding employee conduct was not sufficient to meet this clear and unmistakable waiver standard. In addition, the Board also found that the generally worded zipper clause also did not constitute a waiver of the Union’s statutory bargaining rights.

Bottom Line

This case is a good reminder to employers that it is often difficult to prove that a union waived its right to bargain unless the language in the agreement is clear and unmistakable. Thus, when instituting new policies, employers should be mindful that even if they firmly believe the Union has waived its right to negotiate over the implementation of such policies, the Board may disagree. Therefore, employers should take care of this at the bargaining table by negotiating t he broadest and most specific management rights clause possible which establishes the Union has clearly and unmistakably waived its right to bargain over various items.

Should you have any questions about this case or any other matter, please do not hesitate to contact me.

Thomas J. Birchfield
(502) 587-3663
tjb@gdm.com

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