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Employees, Labor Board Test Workplace Policies on E-Mail



Employees, Labor Board Test Workplace Policies on E-Mail

By MICHAEL J. MCCARTHY 
Staff Reporter of THE WALL STREET JOURNAL

A desktop revolt is brewing.

Many companies may assume they have bulletproof authority to ban all
personal use of office computers or to discipline workers for sending
e-mail that management considers inappropriate.

And employees certainly haven't made much headway with
invasion-of-privacy claims. The nation's courts have basically held that
since employers own the computers, they can do whatever they want with
them. Last year, for example, a Texas court sided with Microsoft Corp.
against an ex-employee who claimed the company had "broken into" his
personal-computer files at work.

But now, some office rebels are beginning to chip away at employers'
power over their own computer systems by dusting off the National Labor
Relations Act, a Depression-era law passed when the rotary telephone was
the last word in desktop technology. The latest wave of activism doesn't
spring from the factory floor, but rather from the cubicles of
programmers and engineers on the electronic frontier.

In the first such case, the National Labor Relations Board reversed the
firing of an Ohio computer programmer -- a "wise guy," in the words of
the presiding judge -- who disparaged a new company vacation plan via
e-mail. In a second, brought by a Florida engineer, Pratt & Whitney was
forced to back off a blanket policy barring use of e-mail for
nonbusiness purposes.

The quasi-judicial NLRB sets rules aimed at keeping industry or labor
from trampling employees' rights to organize themselves. It also
protects the rights of workers to communicate freely with one another
about work terms and conditions -- from pay to vacations to job
security. But the agency is only beginning to grapple with some of the
toughest issues arising in today's computerized workplaces.

Legally speaking, is e-mail more like a phone call or a note? Is a
computer akin to a copier or bulletin board -- that is, a piece of
office equipment employers can regulate almost at will -- or more like a
work space, which they can't?
The board has yet to decide, for instance, whether a unionized company
can unilaterally monitor how employees use its computers. But that
widespread practice seems to contradict previous NLRB rulings on privacy
and workplace monitoring. Under those rulings, companies must bargain
with unions before they can use polygraphs, test for drugs or point
hidden surveillance cameras at workers.

"The way people work is changing dramatically," says Barry J. Kearney,
an NLRB associate general counsel. To keep up, the general counsel's
office recently instructed NLRB offices nationwide to forward to
Washington any cases involving e-mail or Web use by employees. For
instance, the board is considering to what extent an employer must
cooperate with an attempt to organize dispersed telecommuters who lack a
central meeting place.

The following three tales from the trenches illustrate the evolving
struggle over e-mail and the balance between business interests and
employee rights that is beginning to take shape.

The 'Wise Guy'

Lawrence Leinweber tossed and turned as a chill wind howled into
Cleveland one night in December 1995. Earlier that day, the boss had
given an ultimatum: deliver a written apology by 8 a.m. tomorrow -- or
be fired. "I was up trying to figure out how to do this," says Mr.
Leinweber.

The 34-year-old programmer had worked at Timekeeping Systems Inc., a
maker of bar-code readers, for eight months when a fateful memo arrived.
Signed by Vice President Barry Markwitz, it addressed Christmastime,
when "it's very hard to get anything done." The memo said the company
would close each year on Dec. 23 and reopen Jan. 2, then adjust the
number of paid days off over several years to reflect the change. "You
actually get more days off each year," the memo said.

But that didn't sound right to Mr. Leinweber. Doing his own
calculations, he figured there wouldn't be any extra vacation days for
the company's two dozen workers. He shared his finding with them in a
spirited e-mail rebuttal.

"Greetings Fellow Traveler," he began his two-page message, whose
subject line said "Calendar Conundrum." After a series of tables
comparing the old and new vacation policies, he concluded, "Thus, the
closing statement in Barry's memo: 'The effect of this is that you
actually get more days off each year, compared to our present system' is
proven false."

That afternoon, Mr. Markwitz advised Mr. Leinweber in an old-fashioned
paper memo that his e-mail message "was inappropriate and intentionally
provocative" and beneath "someone as talented and intelligent as you."
He then put Mr. Leinweber's $40,000-a-year job on the line. He ordered
him to write an explanation of "why this e-mail message was
inappropriate, how sending an e-mail message like this hurts the
company," and "how this matter should be handled." Failure to comply by
the deadline, or an unacceptable reply, meant immediate termination.

After his sleepless night, Mr. Leinweber arrived at the office to tell
Mr. Markwitz, "I couldn't really write anything incriminating because it
could be used against me later." Mr. Markwitz "wished me luck in my
future endeavors, and put his hand out for me to shake," he recalls. "I
refused."

Hiring a lawyer, he filed an NLRB charge against Timekeeping Systems.

Although federal labor law protects nonsupervisory workers who engage in
group actions to influence working conditions, employees and employers
have fought bitterly for more than six decades over precisely what can
and can't be communicated, as well as when and how.

For example, the NLRB has previously said employees can't overload a
corporate computer system just because they want a subsidized soapbox.
In a 1988 case, the board upheld the firing of a Maryland hospital
pharmacist who sent an electronic message critical of layoffs because it
disrupted about 100 computer terminals at a busy time of day.

The Leinweber case represented the NLRB's first ruling that the use of
e-mail deserved government protection -- even though Timekeeping Systems
had no union, and Mr. Leinweber wasn't trying to start one.

The company argued for an exception. Some remarks about work conditions
can be made in "so intolerable a manner," the NLRB has held before, that
they lose protection. Weighing that argument, NLRB Administrative Law
Judge Bernard Ries ruled that Mr. Leinweber's e-mail had "arrogant
overtones" and "flippant and rather grating language." But, he
concluded, it was more mild than other unpleasant comments the board had
previously upheld, including a letter calling supervisors "a-holes" and
one employee telling others that their CEO was a "cheap s-- of a b----."

Still, the judge was puzzled by the programmer. "Leinweber is, I
concede, a rather unusual person, perhaps one of the new breed of
cyberspace pioneers," he wrote in his 1996 decision. "And at the same
time -- how else can I say it -- a bit of a wise guy."

About two years after his dismissal, the NLRB ordered that Mr. Leinweber
be given back pay, which he accepted, and his old job back, which he
refused. Timekeeping Systems' Mr. Markwitz declines to discuss the case,
except to call it "nasty" and "traumatic." Though vindicated, Mr.
Leinweber says, "I'm totally gun-shy about e-mail."

The Password Plaintiff

Bill McLaren Jr., a lab manager for Microsoft in Dallas, thought that
when he put e-mail into personal folders on his work computer, they were
safe and secure. The company allowed employees to use personal folders,
he says, which they could access using passwords they alone knew.

But during an investigation of him, he claimed, Microsoft took the step
of "decrypting or otherwise breaking into" his personal files.

That was about three years ago, and Mr. McLaren was eager to go before a
court to argue that his privacy had been invaded. But after hearing
Microsoft's side, a judge in Texas state court in Dallas quickly
dismissed the lawsuit.

Mr. McLaren appealed in June 1997, citing two prior cases involving
workplace lockers. In one, a Texas state court found that a Kmart Corp.
store had invaded an employee's privacy by opening her work storage
locker, which she had secured with her own combination lock.

Recognizing the locker was Kmart's property, the court said that when it
was unlocked, the store could conduct "legitimate, reasonable searches."
But, the court said, if an employee bought and used his own lock on that
locker, with the employer's knowledge, then both parties showed an
expectation that its contents would be free from intrusion. In a similar
ruling, another Texas court upheld the privacy-invasion claim of a
topless dancer who was forced by her employer to open her work locker;
drugs were found inside.

Mr. McLaren argued that his password-protected folders were just like
the lockers, saying, "only the technology is different."

Not so, said the Texas appeals court in Dallas in an unpublished opinion
last May. A locker is a "discrete, physical place" where an employee can
store "tangible, personal belongings." An e-mail storage system, the
court reasoned, was different because any e-mails stored in Mr.
McLaren's folders were "first transmitted over the network and were at
some point accessible to a third party."

The 35-year-old Mr. McLaren says he wanted to appeal his case to the
state supreme court. But facing a third go-round with Microsoft, he
adds, "I ran out of money."

Mr. McLaren, who says he earned about $50,000 a year at Microsoft, sued
about a month after the company fired him. In December 1996, according
to his suit, he was "suspended pending an investigation of sexual
harassment and inventory questions." After nearly four years at
Microsoft, Mr. McLaren says he could have proven his innocence if the
company would only have given him complete access to his e-mail files,
as he requested.

"If they want to open your physical locker, they have to get a court
order," Mr. McLaren says. "But if it's electronic, you have no rights."

Dismissing Mr. McLaren's case as "a disgruntled ex-employee trying to
get something," a spokesman for Microsoft, Redmond, Wash., won't say why
Mr. McLaren was fired. Mr. McLaren says it was because he had stored
some "humor mail" in his computer.

Whatever the case, the Texas courts saw a straightforward case: using
company equipment means no privacy guarantees -- secret passwords or
not.

The Rocket Scientist

Brian Waldron, of West Palm Beach, Fla., is no stranger to sweltering
summers. But driving home one day in June 1997 in a white pickup truck
with no air conditioning, he was really steaming.

The 44-year-old aerospace engineer had just been suspended for a month
without pay from his $65,000-a-year job at Pratt & Whitney, a unit of
United Technologies Corp. He had been with the engine and rocket
manufacturer for two decades, and Pratt & Whitney that year had
published his thick technical treatise: "The Rocket Engine and Its
Operation."

Upset about layoffs and other issues, he had helped in late 1995 to form
a group called the Florida Professional Association. Command center for
the would-be union: the bedroom of his ranch home, where he keeps an
Apple Macintosh computer and stuffs paperwork into a file cabinet with a
pink Beanie Baby pig on top.

His month-long suspension became part of a complaint employees filed
with the NLRB charging Pratt & Whitney with retaliating against them for
starting a union seeking to represent some 2,450 local workers.

Since August 1996, according to the NLRB charges, Mr. Waldron and others
"have been warned, suspended or otherwise disciplined" for using e-mail
for union messages or because other employees have downloaded
information from the union's Web page onto company computers.

The NLRB's general counsel office homed in on one key question: Can a
company issue a complete ban on all nonbusiness use of e-mail, which
necessarily includes "employees' messages otherwise protected" by
federal labor law?

No, the general counsel's office said, Pratt & Whitney's policy was
overly broad -- and therefore unlawful. Explaining his reasoning in a
memo, Mr. Kearney, the agency's associate general counsel, said that
e-mail is "more like a telephone call than mail." And he quoted a
law-journal analysis, saying "e-mail allows the reader to talk back.
This ability to exchange ideas and discuss what action to take
collectively is the key to effective preservation of labor rights and
the equalization of bargaining power." Given that assessment, and the
pervasiveness of e-mail in on-the-job communication, Mr. Kearney wrote
in an advisory memo, "we ... determine that there are some messages that
cannot be prohibited."

Unlike a formal NLRB ruling, which would be issued by the agency's
board, the memo doesn't set a precedent, but it offers companies
guidance. After it was issued, Pratt & Whitney, which declined to
discuss the matter, did an about-face. Last summer, it said occasional
personal use of company e-mail would be allowed. And in a memo last July
announcing the settlement of the NLRB charges, company stated that
e-mail could include discussion related to "terms and conditions of
employment and the employee's interest in self-organization."

Last year, before the company changed the e-mail policy, a unionization
vote failed. Now, Mr. Waldron hopes to take another run, this time with
the advantage of "electronic organizing."

"I figure they're still looking," he says, having been suspended twice
over the use of e-mail, which the company was monitoring. "But this time
they can't do anything about it."



URL for this Article:
http://interactive.wsj.com/archive/retrieve.cgi?id=SB956614242273551283.
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