Labor Board Becomes Government’s ‘Rip Van Winkle’

In August 2008 Print Edition of Labor Notes and Monthly Review

Returning to school after winter break, Austin Garrido found that ULoop, an online marketplace for college students, had cut his hourly pay. Elsewhere on the University of California-Polytechnic’s campus in Pomona, his co-worker Sarah Doolittle also discovered a light paycheck.

Unhappy about $8 an hour and shrunken bonuses from the Craigslist-type outfit, the two posted their grievances at Uloop’s online message board for workers. “It’s the only way for employees on different campuses to communicate with each other,” Garrido said.

They started a thread that raised the prospect of unionizing, but management was reading, too. ULoop removed the post five minutes later, and 20 minutes after that the company fired Garrido and Doolittle over the phone.

Their new manager, hired to oversee the wage cuts, cited under-performance, but it was clear that Garrido and Doolittle were singled out for their online organizing via the message board. “They didn’t have a stated usage policy,” said Garrido. “There were a number of non-work-related posts on there.”

Claiming violations of their right to self-organize, the two filed a National Labor Relations Board (NLRB) complaint, seeking back pay and their jobs.

Much to their surprise, the grievance quickly rose to the NLRB's Office of Advice in Washington, D.C, where it entered into a contentious national debate over workers’ rights to online communication.

ON GUARD

Just before Garrido and Doolittle's complaint against ULoop, the Labor Board had laid out its first major ruling on electronic communications, in December 2007.

The controversial 3 to 2 Register-Guard decision stemmed from an incident in 2001, when management at the Eugene, Oregon, newspaper disciplined a copy editor, the Communications Workers (CWA) local president, for sending three union-related messages to the workforce on the company email system.

The Board majority said that the newspaper’s property rights allowed it to decide how the email system would be used—and that employees have no right to use the company email for “concerted activity.”

As long as the ban on concerted activity is not wholesale, the three argued, employers are not compelled to facilitate the most convenient method for worker communication about union matters.

CWA argued that the company’s policy banning “non-work” emails was illegal because it effectively banned union talk. On top of that, the company was selectively enforcing the policy by allowing solicitations about birthday parties and charity donations while punishing union use.

The Board majority broke NLRB precedent and gave employers the right to decide what types of “non-work” communication they wanted to allow.

THE RIGHT TO TALK UNION

The two dissenting members cited precedents dating to 1945 that said the employer’s property rights must yield to the rights of employees to self-organize and take action on the job.

Arguments for employer restrictions don’t hold up in the digital age, says West Virginia University law professor Anne Lofaso. “The Board talks about telephones and bulletin boards as having cost or space concerns,” she said. “Neither of these concerns apply to email."

Because electronic communications are the primary tool for workers to maintain connection in virtual and remote workplaces, Lofaso called the Board decision disingenuous. “Everyone knows that people rely on email at work, so why did the majority decide to ignore that?” she asked. “Because it weakens their case.”

The two dissenters called the decision hopelessly out of touch with workplace realities, and accused the majority of making the NLRB the “Rip Van Winkle of administrative agencies.”

UNENFORCEABLE?

The Register-Guard decision appears devastating for workers' rights, but its effect will depend on how or whether it is enforced.

In Eugene, CWA Local 37194 President Randi Bjornstad noted that the new company policy against mass emails bars the union from sending the types of message that led to the original conflict.

Still, Bjornstad says that union-related emails remain common, without reprisals from the paper.

“Through our entire bargaining process, we have sent emails back and forth to company reps and to each other,” she said. “It has been a rather nebulous kind of ruling in terms of how it has been put into practice.”

Meanwhile, the Register-Guard case is in the Washington, D.C., appeals court, where CWA is challenging the new employer powers to single out union speech for punishment.

In the wake of Register-Guard, the Los Angeles office of the NLRB saw test case written all over the ULoop complaint. However, the Mountain View, California, company is inching toward a settlement, in order to avoid litigation.

The Register-Guard precedent continues to restrict workers’ rights to electronic communications, but Lofaso is confident that the ULoop case exposes its fragility. “Even a McCain-appointed NLRB could overturn this ruling,” she said.