California Newspapers Partnership d/b/a ANG Newspapers

ANG NEWSPAPERS 350 NLRB No. 89 1175 California Newspapers Partnership d/b/a ANG Newspapers and Northern California Media Workers Guild/Typographical Union, Local #39521, TNG–CWA, AFL–CIO. Case 32–CA– 19276–1 September 10, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH On December 23, 2002, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party each filed an an- swering brief, and the Respondent filed a reply brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3 1 The HR Policy Association, Inc. filed a brief amicus curiae in sup- port of the Respondent. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We agree with the judge that the Union did not waive its right to bargain over the June 13, 2001 revised e-mail policy. In doing so, we observe that the judge, in listing the contractual management-rights language on which the Respondent relies, failed to note that the Re- spondent also relies on its right “to make and enforce . . . rules govern- ing the conduct of employees within the newspaper.” This inadvertent error does not affect our decision, however. The omitted provision, like the other contractual provisions cited by the Respondent, is insufficient to constitute a clear and unmistakable waiver of the Union’s right to bargain over the e-mail policy. See, e.g., High-Tech Cable Corp., 309 NLRB 3, 4 (1992), affd. 25 F.3d 1044 (5th Cir. 1994) (clause allowing employer to make “reasonable rules for efficiency, cleanliness, safety, attendance, conduct, and working conditions” was not a clear and un- mistakable waiver of right to bargain over no-tobacco rule). In Member Kirsanow’s view, the plain language of the contractual “zipper” clause (quoted in full in sec. III,A of the judge’s decision) would, without more, compel the conclusion that the Union had clearly and unmistakably waived bargaining over the change at issue here. But there is more. With limited exceptions, the Board has generally found zipper-clause language not to constitute a clear and unmistakable waiver. See Johnson-Bateman Co., 295 NLRB 180, 184 fn. 23 (1989). More specifically, while the Board has permitted a zipper clause to be invoked as a “shield” against demands for bargaining, GTE Automatic Electric Inc., 261 NLRB 1491, 1491–1492 (1982), it has said that such clauses may not be used (as the Respondent seeks to do here) as a “sword” to accomplish a change in the status quo, Michigan Bell Tele- phone Co., 306 NLRB 281, 282 (1992). Member Kirsanow does not here pass on the soundness of these decisions. He observes, however, that they were the law at the time the parties herein negotiated and entered into their collective-bargaining agreement; and such an agree- ment must be read “in the light of the law relating to it when made.” and to adopt the recommended Order as modified and set forth in full below.4 We agree with the judge that the Respondent violated Section 8(a)(5) and (1) by implementing a revised e-mail policy on June 13, 2001, without reaching agreement or impasse with the Union. Because the appropriate rem- edy is to restore the status quo before the unlawful im- plementation, we adopt the judge’s recommendation that the Respondent rescind the June 13 revised policy insofar as it applies to employee e-mail use. The Respondent contends that if the June 13 policy is rescinded the January 1, 2001 e-mail policy will remain in effect. We agree. To find otherwise would amount to a de facto rescission of the January 1 policy, the legality of which is not before us. The judge found that there were two policies: one announced in January and an- other announced in June. Only the June 13 policy was alleged to be unlawful in the complaint. Indeed, in his answering brief, the General Counsel acknowledges that “[a]t no time did the General Counsel plead, allege, or put on trial the lawfulness of anything other than the June 13 e-mail policy.” Furthermore, the General Counsel’s witnesses conceded that the January 1 policy was never withdrawn. The Respondent did hold the January policy in abeyance during the first few months of 2001, but no- tified the Union on April 19 that it intended to enforce the policy. Although the parties continued to bargain over the Union’s objections to the policy, as the judge found, “[t]here is no doubt that the January [policy] was applied to certain employees in April and May.” The judge specifically declined to rescind any pre-June disci- pline, noting that only the June 13 revised policy was alleged to be unlawful. Accordingly, viewing the record as a whole in light of the limited complaint allegation, we do not agree with our colleague that the January pol- icy was never implemented or that the status quo prior to June 13 is the absence of any e-mail policy.5 Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279 (1956). In light of the above-cited cases, the parties could not have contemplated that the agreed-to zipper clause would effect a clear and unmistakable waiver of the Union’s right to bargain over the change at issue here. On this basis, Member Kirsanow concurs in finding that the Respondent’s unilateral change violated Sec. 8(a)(5) as alleged. 4 We shall modify the judge’s recommended Order and substitute a new notice to conform to our findings and to the Board’s standard remedial language. 5 Contrary to his colleagues, Member Walsh would find that the January policy was never clearly and fully implemented. Although the judge found that there were two e-mail policies, he also found, and the record supports his finding, that the January policy “came to be held in at least partial and apparent abeyance.” While the January policy was in abeyance, the Union sought bargaining. The parties met to negotiate on April 27—after the Respondent’s April 19 letter—and had several follow-up communications thereafter, including a letter in which the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, California Newspapers Partnership d/b/a ANG Newspapers, San Francisco Bay Area, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Implementing an e-mail policy applying to unit members without reaching an impasse in bargaining or obtaining the consent of the Northern California Media Workers Guild/Typographical Union, Local #39521, TNG–CWA, AFL–CIO. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the June 13, 2001 policy insofar as it ap- plies to unit members’ e-mail use, and advise unit em- ployees, in writing, that those provisions of the policy are no longer being maintained. (b) Within 14 days from the date of this Order, remove from its files any reference to the discipline of employees pursuant to the June 13, 2001 policy, and within 3 days thereafter, notify the employees in writing that this has been done and that the discipline will not be used against them in any way. (c) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain collectively and in good faith to impasse or agreement with the Union as the exclusive representative of the appropriate unit of employees described in the parties’ settlement agreement executed by the Respondent on December 26, 2001, and by the Union on February 7, 2002. (d) Within 14 days after service by the Region, post at its facilities in the San Francisco Bay Area, California, copies of the attached notice marked “Appendix.”6 Cop- Respondent stated that it was reviewing the policy in light of the Un- ion’s concerns. The enforcement of the January policy against two unit employees in April and May was isolated, was not known to the Union, and consisted only of oral discussions with the employees. In sum, through the Respondent’s own actions, the status of the January policy remained unclear while the parties negotiated. Accordingly, in restor- ing the status quo, Member Walsh would find that there was no e-mail policy in effect prior to the unlawful implementation of the June 13 revised policy, and thus that the status quo that should be restored is the absence of any policy on employee use of the employer’s e-mail sys- tem. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ies of the notice, on forms provided by the Regional Di- rector for Region 32, after being signed by the Respon- dent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, or sold the business or the facilities involved herein, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 13, 2001. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. We are obligated to bargain with a union that is our employees’ exclusive representative for collective bar- gaining concerning wages, hours, and working condi- tions. The term “working conditions” includes our rules and policies concerning represented employees’ non- business use of our e-mail system. A prohibition on rep- resented employees sending personal e-mail messages to multiple addressees—broadcast messaging–is such a rule. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ANG NEWSPAPERS 1177 When obligated to bargain respecting a rule or policy, we may not legally implement a new policy or change an existing policy unless: (1) we have reached agreement with the labor organization representing the employees involved, (2) we have bargained with the Union to an impasse, or (3) we have the permission of the labor or- ganization to implement the new policy or revised policy involved. The Northern California Media Workers Guild/Typographical Union, Local #39521, TNG–CWA, AFL–CIO represents our employees in the unit described in a settlement agreement between the Union and us, executed by us on December 26, 2001, and by the Union on February 7, 2002. After a hearing before an administrative law judge, the National Labor Relations Board found that we violated Federal labor law when we improperly implemented an e-mail policy on June 13, 2001, insofar as it applied to represented employees in the bargaining unit described above, which prohibited employee use of our e-mail sys- tem for nonbusiness multi-addressee or “broadcast” e- mails because we had not reached an agreement or im- passe with the Union in bargaining nor had we obtained the Union’s permission to implement such a policy. The Board has required us to post this notice and to honor its terms. Accordingly, We give our employees the following assurances. WE WILL NOT implement an e-mail policy applying to unit members without reaching an impasse in bargaining or obtaining the consent of the Union, as the exclusive bargaining representative for the appropriate unit of em- ployees described above. WE WILL NOT in any like or related manner interfere with, restrain, or coercing you in the exercise of the rights set forth above. WE WILL rescind the June 13, 2001 policy insofar as it applies to unit members’ e-mail use, and advise unit em- ployees, in writing, that those provisions of the June 13, 2001 policy are no longer being maintained. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the disci- pline of employees pursuant to the June 13, 2001 policy, and WE WILL, within 3 days thereafter, notify the employ- ees in writing that this has been done and that the disci- pline will not be used against them in any way. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain collec- tively and in good faith to impasse or agreement with the Union as the exclusive representative of our employees in the appropriate unit described above. CALIFORNIA NEWSPAPERS PARTNERSHIP D/B/A ANG NEWSPAPERS Karen Reichmann, Esq., for the General Counsel. Laurence R. Arnold, Esq. and Jennifer Ruskin, Esq. (Foley & Lardner), of San Francisco, California, for the Respondent. Derek J. Baxter, Esq. and Barbara L. Camens, Esq., with him on brief (Barr & Camens), of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard the above-captioned case in trial in Oakland, California, on October 2, 2002, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 32 of the National Labor Relations Board on June 2, 2002. The complaint is based on a charge filed by the Northern California Media Workers Guild/Typographical Union, Local #39521, TNG–CWA, AFL– CIO (the Charging Party or the Union) against California Newspapers Partnership d/b/a ANG Newspapers (the Respon- dent) on December 5, 2001, and docketed as Case 32–CA– 19276–1.1 The complaint, as amended at the hearing, alleges and the answer denies, inter alia, that the Respondent revised its e-mail policy without the consent or agreement of the Union, the ex- clusive representative for collective bargaining of a unit of the Respondent’s employees, thereby violating Section 8(a)(5) and (1) of the Act. The complaint further alleges, and the answer denies, that the Respondent informed a unit employee that the e-mail message the employee had sent to other unit employees violated the Respondent’s revised e-mail policy because the e- mail communication involved the Union in violation of Section 8(a)(3) and (1) of the Act. On the entire record, including helpful briefs from the Re- spondent, the Charging Party, and the General Counsel, I make the following FINDINGS OF FACT2 I. JURISDICTION The Respondent is a California partnership with offices and places of business in various cities in California, including Pleasanton and Oakland, where it has at all times material been engaged in publication and distribution of newspapers. The Respondent annually in the course of its business operations enjoys gross revenues in excess of $200,000 and holds mem- bership in or subscribes to various interstate news services, publishes nationally syndicated features, and advertises nation- ally sold products. Based on the above, there is no dispute and I find the Re- spondent is and has been at all times material an employer en- gaged in commerce within the meaning of Section 2(2), (6), 1 All dates are in 2001 unless otherwise indicated. 2 As a result of the pleadings and the stipulations of counsel at the trial, there were few disputes of fact regarding collateral matters. Where not otherwise noted, the findings herein are based on the pleadings, the stipulations of counsel, or unchallenged credible evidence. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178 and (7) of the Act. II. LABOR ORGANIZATION The record establishes there is no dispute, and I find the Un- ion is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent publishes five daily newspapers, one of which is the Oakland Tribune, from various locations in the San Francisco Bay Area. The Union has for some years represented a unit of the Respondent’s full-time and part-time reporters, staff writers, photographers, copy editors, assistant city editors, paginators, and clerks and support personnel, excluding all other employees, guards, and supervisors as defined in the Act (the unit). There is no dispute that the unit is appropriate for purposes of collective bargaining within the meaning of Section 9(a) of the Act. There are approximately 200 employees in the unit working at the Respondent’s various locations. The Union and the Respondent entered into a collective- bargaining agreement effective by its terms from August 17, 1998, through August 16, 2001. The parties commenced nego- tiations for a successor agreement in June 2001. The 1998– 2001 contract was extended by the parties to May 2002 at which time it expired. That agreement asserts at article v man- agement rights, sections 2(a) and 4, and article XXVIII: Article V—Management Rights. Section 2. The sole and exclusive rights of management which are not abridged by this Agreement shall include but are not limited to the following rights: (a) To establish or continue policies, practices, and procedures for the conduct of the business and, from time to time, to change or abolish such policies, practices, or procedures. . . . . Section 4. The Company shall have the sole and exclusive right at any time to establish, abolish, or alter the practices or customs of break periods and telephone calls by employees and to limit or restrict such practices or customs as the Com- pany may determine. Article XXVIII—Waiver Section 1. The parties hereto acknowledge that, during the negotiations which resulted in the Agreement, each had the unlimited right and opportunity to make demands and propos- als with respect to all proper subjects of collective bargaining; and all such subjects have been discussed and negotiated upon; and the agreements contained in this Agreement were arrived at after the free exercise of such rights and opportuni- ties. Therefore, the Company and union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject matter not specifically referred to or covered in this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement. Electronic mail, or e-mail, is an electronically transmitted communication, sent from one e-mail address or account (ad- dress) to another address typically over a public or private computer network. Initially rudimentary and uncommon in the previous decade, it has rapidly evolved and matured and is increasingly common both within commercial organizations on private or public networks and among members of the national and international public generally transmitting communications over the international public network referred to as the Internet. E-mail transmissions are usually available for retrieval by the addressee for a period of time and once received may be stored on the receiving computer and may be answered with simplicity. Using more modern e-mail systems, individual e- mail communications may be sent to large numbers of address- ees at one time. This is sometimes referred to here as a multi- ple-addressee e-mail or a broadcast e-mail. The ability to send large numbers of copies of e-mail messages to others has be- come both an asset and a liability in the commercial world. Senders may communicate a common message to a large group of e-mail addressees who desire or require such communica- tions significantly enhancing organizational communication processes. Advertisers and others, however, may also send unsolicited and often unwanted advertisements and other com- munications to a very wide audience for very low cost burden- ing the communication networks involved and maddening the e-mail addressees subject to such unwanted and seemingly endless communications. E-mail communication, at least among those who regularly use computers is a means of communication increasingly like the telephone in its convenience and ubiquity. Employees who use the computers of their employer are frequently able to send and receive e-mail communications for personal as well as business purposes. Employers have in consequence established various rules respecting employee e-mail use. There is no dis- pute that a rule respecting employee use of the employer’s e- mail system, like a rule respecting employee use of employer telephones, is a mandatory subject of bargaining. The Respondent has had an e-mail system of growing so- phistication since the late 1990s, before the 1998 contract was entered into. During negotiations for the 1998 contract there were apparently no discussions whatsoever specifically ad- dressing employee e-mail use nor were there rules in place respecting such use. Unit editorial and reporter employees have e-mail addresses provided by the Respondent and have at all times used the e-mail communication process both for business communication with other Respondent and public addressees and for personal or nonbusiness communication. B. Events 1. The circumstances and events respecting the Respondent’s e-mail rules In late 2000, the Respondent circulated among all its em- ployees, including unit employees, a memorandum entitled ANG NEWSPAPERS 1179 “ANG Newspapers Electronic Technology Policy”3 by its terms effective on January 1, 2001. The memorandum contains a detailed set of rules and provisions respecting use of both per- sonal and business e-mail including the following provisions: Failure to abide by any or all provisions of this policy will subject the offender to disciplinary action up to and including immediate termination of employment. Anyone who feels he or she is being or has been unfairly treated under this policy and its enforcement may seek redress through the company’s Fair Treatment Policy. The memorandum further provides: E-mail may not be used for unauthorized broadcast messages or solicitations. A broadcast message or solicitation is one where there is greater than one addressee. The memorandum at its conclusion provides signature lines for the individual receiving employee to sign in acknowledgement that the employee had read and understood the policy, agreed to abide by its terms and further provided space for the em- ployee’s signature to be witnessed by a superior who also signed in the provided space. There is no dispute the policy was written and circulated by the Respondent as a policy that would go into effect on January 1, without notification to or bargaining with the Union. On January 12, Robert Jendusa, the Respondent’s senior vice president for human relations, sent an e-mail to Local Union Representative Erin Tyson Poh with the following text: As you know, recently ANG issued an “Electronic Technol- ogy” Policy to all of its employees. Inadvertently and regret- tably, I failed to send you a copy in advance. I wanted you to know it was not intentional and I apologize for any inconven- ience this oversight may have caused. As you know, ANG has had guidelines for email, telephone and Internet use for sometime. This written policy was drafted essentially from the one in use at the Denver Post and is consis- tent with our past practices. It has been distributed to all news- papers in California. As always if you have questions, I would be glad to discuss any part of the policy with you. I will fax a copy of the policy to you this afternoon. Erin Poh testified that after she received the e-mail com- munication and the policy she contacted Jendusa. She re- called she, Told him that I believed that the policy had some problems. And we were concerned with the fact that members were be- ing asked to sign that they would—that they would obey the policy. That we had not discussed any kind of electronic tech- nology policy, and that we needed to sit down and discuss it. And I asked him also to please stop circulating and asking 3 While this policy has other elements and aspects, the portion rele- vant to the instant case is that restricting the nonbusiness employee sending of broadcast e-mails. Throughout this decision references to the policy or the e-mail policy refer to the quoted portions of the Electronic Technology Policy dealing with e-mail use and the disciplinary provi- sions. employees to sign the policy. Q. And what did Mr. Jendusa say to you in response? A. I believe that we said that we would get together and talk, and that was the end of the conversation. Jendusa testified that Poh never asked to bargain respecting the policy although she did request that they “have lunch and discuss it.” He further recalled that Poh raised some “questions we needed to at least research.” Jendusa denied that the Re- spondent withdrew the announced policy but rather testified that the Respondent decided it would “back off” on the imple- mentation of the policy. Thus, Jendusa testified that in January through the beginning of April, the policy was not “actively enforced” and employee-signed policy memoranda were not systematically collected. During this period Poh and Jendusa communicate by telephone and by e-mail correspondence about the matter. Poh testified that Jendusa made it clear to her that the Re- spondent was not enforcing the policy, was not, as a matter of policy, asking employees to sign copies of the policy and that the matter for the time being was on hold. On April 19, Jendusa sent Poh a letter asserting that the contract’s man- agement’s rights provisions gave the Respondent the right to formulate and implement the policy and that the Union’s views to the contrary were “erroneous.” He asserted that it was the Respondent’s intention to enforce the provisions of the policy. On April 27, Poh and Jendusa met over lunch and dis- cussed the policy and the Respondent’s intentions. The Un- ion’s view that the policy—including the prohibition of unauthorized broadcast e-mail messages or solicitations— was an improper unilateral change and the Respondent’s view that it was allowed to make and implement the policy under the management rights clause of the contract were recapitulated. Other discussions occurred respecting the policy’s review procedures. On May 8, Jendusa sent a letter to Poh following up on the meeting and discussions of April 27. The letter dis- agreed with the position of the Union respecting the impro- priety of the policy under Board law, clarified aspects of the policy respecting unit member grieving of the policy’s dis- cipline and generally supported the Respondent’s view the rule was necessary and proper. The May 8 letter concluded: We, are, however, reviewing the policy to determine if there are any changes that we might want to make in light of the concerns you expressed as well as certain issues were identi- fied for further discussion during our review. If we find that changes are appropriate or necessary, we will review the pol- icy accordingly, and I will advise you of the changes as a courtesy to you and the Union. Poh responded by letter to Jendusa, dated May 14, de- manding the Respondent remove the policy’s prohibition of employee email broadcast messages or solicitations. By early June, in response to inquiry by Poh, Jendusa informed DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180 Poh the Respondent’s determination on the specifics of the policy would soon be forthcoming. By letter dated June 13, Jendusa informed Poh of a re- vised electronic technology policy which, although modi- fied in other particulars, retained the Respondent’s prohibi- tion of employee—including unit employee—nonbusiness e-mail multiple address or broadcast communications or solicitations. The letter attached the revised policy which states it is effective January 2001 and which retains the space at the bottom of the final page as earlier described respecting the original printed police for a “read, under- stand, and abide certification” and space for both employee and witness signatures. The revised policy was soon distributed to employees and the Union again communicated its ongoing objections to Jendusa. Negotiations for a successor agreement com- menced between the Respondent and the Union on June 25 and e-mail rule proposals were discussed during those nego- tiations. 2. The events respecting employee Robert Gammon Robert Gammon is a unit employee and reporter at the Respondent’s Oakland facility. He is also a member of the Union’s bargaining committee and an official on its organiz- ing committee. On or about June 27, Gammon sent a multi- addressee e-mail message to certain unit employees con- cerning organizing committee matters. A printed copy of one of the e-mail messages was left in a photocopier and came to the attention of management. On or about July 3, Oakland Tribune Editor Mario Dianda asked Gammon into his office and there, in Gammon’s recollection with a copy of the e-mail in hand, told Gammon that his multi-addressee e-mail was a violation of company policy. Dianda did not testify. Gammon testified: I believe [Dianda] said something like be more discreet or something like that, or don’t—this shouldn’t happen again. Something along those lines. Gammon demurred stating that he thought that only unsolicited multiple addressee e-mails were prohibited and that his e-mail had been requested by the recipients to which Dianda re- sponded he did not know the answer to Gammon’s question, and that he would get it clarified. A few days later, Jendusa spoke to Gammon and told Gam- mon in his recollection “that any e-mail that goes to more than one person that’s not authorized by the Employer is a violation of the Employer’s e-mail policy.” This was the only occasion that Gammon recalled in which Jendusa had ever approached him and discussed work rules. Other employees in May and June were told not to send broadcast e-mail or counseled by supervision respecting their sending multiple addressee nonbusiness e-mails and similar instruction of employees has occurred since. Other instances of employee violations of the policy were established as having occurred during this period. Thus, some personal broadcast e- mails were sent by employees to members of the Respondent’s supervisory staff without action being taken against them. There was no evidence that the human resources department or Jendusa was aware of such communications without acting on them. Jendusa testified that the new e-mail policy was difficult to implement and was resisted by many on the staff both non- supervisory and supervisory, unit and nonunit members. He lamented that the policy raised many questions and that because of the multilocation organization of the Respondent’s opera- tions the policy was difficult to enforce. C. Analysis and Conclusions 1. The 8(a)(5) allegations The complaint alleges at paragraphs 10(a), 10(c), and 13 that the Respondent’s implementation of its “revised” policy regard- ing the use of its electronic (e-mail) system on or about June 13, was undertaken without the consent or agreement of the Union and therefore violated Section 8(a)(5) and (1) of the Act. a. The argument of the parties The General Counsel and the Charging Party argue that there is no dispute that the Respondent’s policies respecting em- ployee e-mail use are mandatory subjects of bargaining, that the Respondent issued a revised policy respecting those matters on June 13, which applied to unit employees, and that it did so without either reaching an impasse in bargaining with the Un- ion respecting the policy or obtaining the Union’s agreement or consent to the implementation. Thus, argue the General Coun- sel and the Charging Party, the record establishes a clear prima facie unilateral change violation of Section 8(a)(5) of the Act. The Respondent does not directly dispute the prima facie elements alleged by the government as described above, but rather asserts the Union bargaining rights respecting the policy had been waived both by delay in filing the charge and by vir- tue of the terms of the contract. Thus, the Respondent argues that the allegations of the complaint are untimely and precluded by the time limitations contained in Section 10(b) of the Act. Further it argues that the Respondent was not obligated to bar- gain respecting the policy due to the management-rights and waiver or zipper clauses of the contract. The Charging Party and the General Counsel dispute these contentions. b. The issue of the statutory limitation of Section 10(b) of the Act Affirmative defenses raising a time bar under Section 10(b)4 of the Act are addressed first in any consideration of the com- plaint allegations for, if the defense is sustained, no further consideration of the time barred allegations is appropriate. And, at the threshold of considering a statute of limitations argument, the timeliness of that argument itself is properly addressed. The General Counsel on brief at 7, fn. 4, argues the Respon- dent is foreclosed from raising a 10(b) argument: Any argument by [the] Respondent that the complaint is barred by Section 10(b) [of the Act] because the Policy was in 4 Sec. 10(b) of the Act provides in part: “[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.” ANG NEWSPAPERS 1181 force prior to the June distribution must be rejected because [the] Respondent neither raised this defense in its pleading nor litigated it at the hearing. See, e.g., Laborers’ Union Local No. 324, 318 NLRB 589 (1995); Christopher Street Owners Corp., 286 NLRB 253 (1987). The Charging Party on brief argues that the Respondent failed to raise a 10(b) defense in its pleadings or at the hearing and such a defense is precluded if asserted for the first time in a post-hearing brief citing, Newspaper & Mail Delivers (New York Post), 337 NLRB 608 (2002). The cases cited are current and on point. The Respondent did not raise this defense in its pleadings or at the hearing, doing so on this record for the first time in its posthearing brief. Accord- ingly I find the Respondent’s 10(b) defense is precluded as untimely raised. c. The contract defenses5 (1) The management-rights clause Relevant portions of the agreement’s article V— management-rights provisions are quoted supra. The agreement was in force and effect during the relevant period. The Respon- dent argues that with respect to any right the Union had to bar- gain over the rules respecting unit employee personal use of the Respondent’s e-mail system: [I]t exercised that right instead by agreeing during bargaining that [the] Respondent has the sole and exclusive right to estab- lish, amend and discontinue rules of conduct and operating policies, generally, so long as the rules or policies did not con- flict with an express term of the Agreement. [R. Br. at 15.] The General Counsel makes several answering arguments. First, counsel for the government argues that a general man- agement-rights clause, as presented here, which refers simply to the right of the Respondent to promulgate “rules” is simply too general in its language to constitute a waiver of a labor organi- zation’s bargaining rights over rules which are backed up with discipline such as are involved, herein, citing Dorsey Trailers, Inc., 327 NLRB 835 (1999). Second, counsel argues that the negotiating parties could not have had e-mail rules in mind when the management-rights contract language was agreed to because the date of that agreement preceded the Respondent’s introduction of e-mail in the workplace. These circumstances, counsel argues, make it clear that the contract does not provide the “clear and unmistakable waiver” of the right to bargain respecting employee e-mail use required by the Board. The Charging Party argues in similar fashion. It notes that the Board in Klein Tools, 319 NLRB 674, 687 (1995), refused to find waiver based on “strikingly similar” contract language. The Charging Party also notes that the contract language in article V, section 4, deals with telephone calls and not with e- mail messages. The General Counsel and the Charging Party’s cases are on point. It is clear that the contract language invoked as a defense by the Respondent, in light of the general language involved, 5 As the party asserting contractual waiver, the Respondent bears the burden of proof on the issue. TCI of New York, 301 NLRB 822, 824 (1991). the timing of the contract language agreement, and the nature of the technology policy with its potential disciplinary action against employees for e-mail utilization violations, did not and does not act to waive the Union’s bargaining rights over the rule or the subject of employee personal e-mail use. Accord- ingly, I reject the Respondent’s argument that the contract’s managements-rights language constitutes a waiver of the Un- ion’s bargaining rights. (2) The zipper clause The language of the agreement’s article XXVIII is quoted supra. The clause, of the type commonly referred to as a “zip- per clause,” purports by its terms to conclude bargaining re- specting “all proper subjects of bargaining” including, [A]ny subject matter not specifically referred to or covered in the Agreement, even though such subject matter may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agree- ment. The Respondent argues that this contract language acts to end the Union’s bargaining rights respecting unnamed topics and that, if it be argued by the government that the e-mail use was not covered by the management-rights clause, it is still included in the agreement under the language quoted above, and in consequence the Union waived its bargaining rights respecting the policy. The General Counsel responds on brief at 7 that the Board holds that a generally worded “zipper” clause does not create a waiver of a labor organization’s bargaining rights citing Trojan Yacht, 319 NLRB 741 (1995); Johnson-Bateman, 295 NLRB 180, 184 (1989); and Suffolk Child Development Center, 277 NLRB 1345, 1350 (1985). The General Counsel argues that for a waiver of bargaining rights to be found, the subject matter at issue must have been “fully discussed and explicitly explored during the negotiations citing Rockwell International Corp., 260 NLRB 1346 (1983). Since there is no record evidence that employee personal e-mail use was ever discussed or considered during bargaining at all, let alone with respect to any contract language, there can be no finding of waiver of any union bar- gain rights. The Charging Party adds that, as with management- rights clauses, the Board requires waivers in zipper clauses to be “clear and unmistakable” holding generally worded zipper clauses do not constitute waivers of statutory bargaining rights. Again the General Counsel and the Charging Party’s cases are on point. It is clear and I find that the contract zipper clause on this record and under the cases cited did and does not act to waive the Union’s bargaining rights over the rule and the sub- ject of employee personal e-mail use. Accordingly, I reject the Respondent’s argument that the contract’s zipper clause lan- guage constitutes a waiver of the Union’s bargaining rights respecting the policy. d. Other waiver contentions Although the parties generally argued the waiver theories specifically discussed above, various collateral arguments were made that are appropriately addressed here. First, the parties argued the events of January through June 13. Thus, the Re- spondent argued, and the General Counsel and the Charging DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182 Party opposed the argument, that: (1) the Union did not seek or in fact engage in bargaining respecting the January 1 policy, (2) that the January 1 policy was never withdrawn or rescinded prior to its June 13 revision, and (3) that the Union well knew or should have known of these facts. From these assertions the Respondent argues—to a degree separate from the other argu- ments discussed in this decision—that the Union’s actions and inactions as advanced by the Respondent diminish or waive any rights the Union might otherwise have had to bargain respect- ing the e-mail policy involved herein. I find that there is no question that the Union, through Poh, sought and in fact engaged in bargaining over the policy. The Respondent’s characterization of the Union as seeking discus- sions rather than bargaining over the January 1 policy is a dis- tinction without difference. Similarly, the luncheon meeting and subsequent communications between Poh and Jendusa in which objections were presented by the Union and the Respon- dent indicated the objections would be considered is bargaining as the Act and the decisional law contemplates it. This is true even if the Respondent asserted that the Union had no right to bargain over the rule and further asserted the Respondent had both the right and intention to do as it would regarding the rule. It is also true even if the Union may have had a similar belief or at least doubt that it has the right to bargain over the rule. I also find that, contrary to the argument of the Respondent, the Union had a reasonable basis for belief and, crediting the testimony of Poh whose demeanor on the matter was persua- sive, in fact had the belief that the Respondent had agreed to consider the Union’s views and had in fact “backed off” its policy pending consideration of issues raised by the Union. I reach this conclusion based on the evidence set forth above respecting the statements of the Respondent to the Union. I specifically find that Respondent’s written position in Jendusa’s letter to Poh of May 8, as quoted in part above, that it was re- viewing the policy in light of the concerns of the Union and “certain issues” which had been “identified for further discus- sion during our review” as it followed up on the earlier state- ment of Jendusa to Poh respecting putting the policy “on hold,” in the entire context of events, fairly communicated to the Un- ion the fact that the policy was in fact being held in abeyance by the Respondent pending completion of the review. I do not find the fact that the Respondent’s human resources department was acting to the extent described above in April and May to discourage employee broadcast e-mail communica- tions which were in violation of the January 1 policy was or should have been known to the Union in manner sufficient to put them on notice the policy was being enforced at that time. The enforcement of the rule during this period was simply not so public or open as to put the Union on notice that the policy was being applied. The fact that the Union may not be charged with actual or constructive notice of the enforcement of the policy renders the Union’s inaction respecting the Respondent’s enforcement of the policy in April, May, and through June 13 of no consequence to the validity of their later complaints. All of the above arguments were asserted in part because of the argument that the complaint is foreclosed by operation of the 6-month time limitations of Section 10(b) of the Act. My findings in the paragraphs immediately above would also have had bearing on a 10(b) analysis, had I not determined that such an analysis was unnecessary because the argument was un- timely raised as discussed, supra. These arguments were also made in support of a general theory of waiver or latches re- specting the Union’s assertion that the June 13 policy was a unilateral change. I find that they do not individually or collec- tively support or sustain the Respondent’s waiver theories as asserted herein. Finally, I have considered and reject for the reasons noted above, the Respondent’s argument that the policy was seam- lessly applied and was never withdrawn or held in abeyance, but rather was only revised in June. Rather, I find that there were in effect two policies, one that was announced shortly before and commenced in January 2001 and came to be held in at least partial and apparent abeyance by the Respondent and the second, the June 13 policy, which was implemented on June 13 simultaneously with its announcement. e. Conclusions respecting the June 13 unit employee e-mail rule I have found that the Respondent implemented a rule appli- cable to represented unit employees respecting a mandatory subject of bargaining without reaching an impasse in bargain- ing with the Union or obtaining the agreement of the Union to the implementation. I have further found that there was no waiver of the Union’s bargaining rights respecting the Respon- dent’s policy regarding unit employee e-mail use. I therefore find that the Respondent’s implementation of an e-mail policy respecting unit employees on or about June 13 violated Section 8(a)(5) and (1) of the Act. This element of the complaint is sustained. f. The application of the rule to employees including employee Gammons There is no doubt that the January unit employee e-mail rule was applied to certain employees in April and May. Since the time limitations of Section 10(b) of the Act have not been ap- plied to this case because they were not timely raised by the Respondent, may these applications of the rule be found a violation of the Act or should they be rescinded in any remedy directed, infra. On this record and in particular because the General Counsel’s complaint and counsel for the General Counsel’s arguments at trial and on brief were limited to an attack on the June 13 revised policy, I find that the record ap- plication of the earlier January 1 rule to certain unit employees may not properly constitute a violation of the Act nor may those applications of the rule be addressed in any manner as part of the remedy directed toward the unfair labor practice of the unilateral application of the June 13 revised policy. I find therefore that these pre-June 13 applications of the rule to em- ployees need not and shall not be further addressed. There is also no dispute that the June 13 unit employee e- mail rule was applied to employee Gammon and to others. Since the rule was implemented in violation of Section 8(a)(5) of the Act, the application of the rule to Gammon and others after its wrongful implementation on June 13 is a further aspect and consequence of the wrongful implementation of the rule and I so find. Is each application of the rule after June 13 an ANG NEWSPAPERS 1183 additional violation of the Act? The complaint did not allege the application of the rule to Gammon as a further violation of Section 8(a)(5) of the Act. In colloquy at trial the General Counsel reaffirmed the government’s intention to treat the alle- gations of Section 8(a)(3) and (5) independently. The Gammon matter was alleged only as a violation of Section 8(a)(3) and (1) of the Act. Given this context, I decline to find the application of the invalid rule to Gammon and others after June 13, were separate violations of Section 8(a)(5) of the Act. The remedy portion of this decision, however, addresses the Gammon situa- tion and other post-June 13 applications of the rule as part of the remedy of the 8(a)(5) violation found. See discussion infra. 2. The 8(a)(3) allegation The complaint alleges that the Respondent violated Section 8(a)(3) and (1) by informing employee Gammon, a unit em- ployee, that the e-mail he sent to other unit employees violated the Respondent’s e-mail policy. The allegation is legally sepa- rate from the 8(a)(5) allegations and findings above. As noted, above, the complaint does not allege the conduct discussed herein as a violation of Section 8(a)(5) of the Act. a. The contention that employee gammon was singled out due to union activity The General Counsel and the Charging Party argue the Re- spondent’s policy was disparately enforced against Gammons because the e-mail communication involved was, in effect, “union business” and hence sending the e-mail was union and protected concerted activity. Thus, the General Counsel and the Charging Party argue that only Gammon received a verbal cor- rection from Jendusa after being initially instructed by Editor Dianda when the other employees whose e-mails were known to have violated the policy did not receive such official treat- ment. Thus, the General Counsel argues on brief at 8: “[The] Respondent singled out Gammon for reprimand despite the fact that there were widespread violations of the Policy.” And coun- sel argues further on brief at 9: “The evidence leads to the con- clusion that Gammon, a known Union activist, was singled out for reprimand in retaliation for his protected activity.” The Respondent disputes these contentions arguing that Gammon was simply treated like other employees whose e- mails came to management’s attention with two benign excep- tions. First, Gammon was spoken to twice by Respondent’s agents simply because he raised a question concerning the pol- icy’s application to sending multiple addressees information to addressees who had requested the information. Editor Dianda— the first agent of the Respondent to speak to Gammon on the matter—told Gammon he could not answer Gammon’s argu- ment and would have to get more information and get back to him. Gammon’s question and the necessity that it be answered therefore required a second conversation with Gammon by Dianda or some other agent of the Respondent who could an- swer the policy question Gammon raised. That agent was Jen- dusa. Second, because the e-mail was known by the Respon- dent to involve union matters, Jendusa wanted to insure that Gammon understood the policy was being applied to him solely because of the number of the addressees involved and not be- cause of the “union business” content of the particular e-mail involved. I have carefully considered the arguments of the parties in light of the record as a whole and the demeanor of the wit- nesses, particularly of Jendusa in his description of the events and his motivations. I credit Jendusa that his motivation in talk- ing to Gammon was prophylactic rather than disciplinary. I further find the treatment of Gammon, even under his descrip- tion of events, does not persuasively suggest discriminatory application of the rule to protected or union activities. Accord- ingly, I find there is insufficient evidence on this record to sus- tain the burden the General Counsel bears to establish the viola- tion. Rather, I find that the Respondent acted in the circum- stances no differently than it would have had Gammon not been a known union official and/or the e-mail had not involved un- ion matters. b. The contention that the rule and its general application vio- lated Section 8(a)(3) of the Act The Charging Party makes a scholarly argument that an em- ployer who allows his employees to use its property for non- business purposes cannot discriminate against such employee use involving union or protected concerted activities. The Charging Party further argues in this case that prohibiting em- ployee use of electronic mail for distributing union material is impermissible independent of the issues of a violation of Sec- tion 8(a)(5) of the Act. The Charging Party’s arguments in these regards suggest that, irrespective of the bargaining issues litigated under the complaints 8(a)(5) allegations and even if the Respondent’s e-mail rule were uniformly applied to unit employees without focus on union or protected activity com- munications, the rule would be invalid and itself an unfair labor practice. Further, any application of the rule insofar as the Re- spondent acted to restrict employee union activities would be an additional unfair labor practice and the rule, as a matter of law, could never justify adverse action against senders of mul- tiple addressee e-mail communications respecting union and or protected concerted activities. These arguments require a com- pletely different consideration and analysis and are essentially independent of the factual issue of discriminatory enforcement and application of the rule. The General Counsel, however, does not join in this per se argument advancing this theory of a violation. And, impor- tantly, counsel for the General Counsel made it clear at the hearing that, although the General Counsel was considering advocating wider theories of violations of the Act respecting employee e-mail communication and may in fact do so in other cases, the General Counsel’s theory of a violation in instant case did not involve making new law or even extending exist- ing decisions, but rather fell squarely within traditional case law and analysis. I find the government’s statement of position on the theory of violation at complete variance to the more esoteric arguments of the Charging Party respecting a per se theory of rule violation under Section 8(a)(1) and (3) of the Act set forth above. More specifically, I find that the General Coun- sel is not contending the policy involved herein, independent of the bargaining allegations discussed, above, or the manner in which it was applied to Gammon, independently violates the Act whenever it is applied to protected concerted or union e- mail communications. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184 Given the General Counsel’s plenary control over the allega- tions of the complaint and his equally broad control over the theories of violations offered in support of the complaint allega- tions, I find the Charging Party’s broader theory of a violation is precluded by the government’s position as set forth above. A Charging Party may not advance a theory of violation the gov- ernment expressly disavows. I shall therefore not further con- sider the arguments of the Charging Party respecting its theory of a per se violation. c. Summary and conclusion respecting the 8(a)(3) allegation I have found that the government’s 8(a)(3) allegation as care- fully described and defined by the General Counsel asserts that the Respondent violated Section 8(a)(3) of the Act by discrimi- natorily applying its e-mail rule to Gammon in the circum- stances discussed above because the content of the e-mail mes- sage sent by him involved union business. I have found the broader 8(a)(3) theory of a violation advanced by the Charging Party that any application of such a rule by the Respondent to protected communication was a violation, even if not discrima- torily applied, is precluded by the General Counsel’s explicit omission to adopt and advance that theory. Turning to the discrimination theory on the facts, I have found that there is insufficient evidence that the Respondent treated Gammon differently and/or discriminated against him because of the content of the e-mail or because of his union activities or those of the e-mails addressees. Rather, I find that the Respondent’s agent’s actions and communications with Gammon respecting his e-mail communication were consistent with and no different from other applications of the revised rule save as were benignly explained by the circumstances in which the rule was discussed. Thus, I have found that Jendusa’s fol- low-up contact with Gammon was a result of Gammon’s ques- tioning of the rule’s application to e-mail communications to unit employees who had requested such communications as opposed to being passive nonsoliciting recipients of broadcast e-mail communications. Having concluded that the rule is not generally under attack as a per se violation of Section 8(a)(3) of the Act by the Gen- eral Counsel and having further concluded that the Respondent did not apply the rule in a discriminatory fashion to Gammon, I find that the General Counsel has not met his burden of proof that the Respondent violated Section 8(a)(3) of the Act as al- leged. I shall therefore dismiss this allegation of the complaint. 3. Summary I have found above that the Respondent implemented its re- vised unit e-mail policy on June 13, without reaching an im- passe in bargaining with the Union concerning the revised pol- icy and without obtaining the permission of the Union to im- plement its terms. I have rejected the Respondent’s singular argument that the Union waived any bargaining rights it may have had concerning e-mail rules. I have therefore further found that the implementation of the e-mail rule on June 13 by the Respondent was a unilateral change in violation of Section 8(a)(5) of the Act. I therefore sustain the 8(a)(5) allegation of the complaint. I have found above that the Respondent applied the policy to employee Gammon, but that it did so as part of its general ap- plication of its rules and that it did so without discrimination against Gammon because of the ‘union business’ content of the e-mails, which were the subject of the policy’s application. Accordingly, I further found that the Respondent did not violate Section 8(a)(3) and (1) of the Act as alleged in the complaint. I shall therefore dismiss the 8(a)(3) and (1) allegation of the complaint. REMEDY Having found that the Respondent violated the Act as set forth above, I shall order that it cease and desist therefrom and post remedial Board notices. Further the language on the Board notices will conform to the Board’s recent decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), that notices should be drafted in plain, straightforward, layperson language that clearly informs employees of their rights and the violations of the Act found. Having found that the Respondent’s implementation of its revised policy, insofar as it applied to unit employees on June 13, was an improper unilateral change in working conditions of represented employees in violation of Section 8(a)(5) and (1) of the Act, shall order the Respondent to restore the status quo ante respecting unit employees by rescinding the policy insofar as it applies to unit employees. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215–216 (1964). I shall also require the Respondent to bargain with the Union and reach agreement or valid impasse in bargaining respecting a unit em- ployee policy respecting e-mail use prior to reimplementing the rule or other rule addressing employee e-mail use. Further, I shall order the Respondent to complete the restora- tion of the status quo ante by withdrawing and rescinding any and all warnings, counseling, or discipline directed to unit em- ployees for their violation of the Respondent’s June 13 revised e-mail policy occurring on and after the announcement of the policy on June 13. CONCLUSIONS OF LAW On the basis of the above findings of fact and the record as a whole, I make the following 1. The Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party is, and has been at all relevant times, a labor organization within the meaning of Section 2(5) of the Act. 3. The Charging Party represents the Respondent’s employ- ees in the following unit, which is appropriate for bargaining within the meaning of Section 9 of the Act: All full and part time reporters, staff writers, photographers, copy editors, assistant city editors, paginators and clerks and support personnel, excluding all other employees, guards and supervisors as defined in the Act 4. The Respondent violated Section 8(a)(5) and (1) of the Act on or about June 13, 2001, by unilaterally implementing its unit employee e-mail use policy without reaching an impasse in bargaining with the Union or obtaining its permission to im- plement the policy. 5. The unfair labor practices described above are unfair labor ANG NEWSPAPERS 1185 practices within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not otherwise violate the Act as al- leged in the complaint and the complaint allegations not sus- tained shall be dismissed. [Recommended Order omitted from publication.]