Lookheed Martin Skunk Works

National Labor Relations Board - Board Decisions

Jul 24, 2000

331 N.L.R.B. 852 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
Lockheed Martin Skunk Works, a Division of Lock-
heed Martin Corporation and John Morehead,
Petitioner and Engineers and Scientists Guild,
Lockheed Section. Case 31–RD–1396
July 24, 2000
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held December 17, 1998, and the hearing officer’s report
recommending disposition of it. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 407 for and 446 against the Union,
with 4 challenged ballots, an insufficient number to af-
fect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings1 and recommendations only to the extent consis-
tent with this Decision and Certification of Results.
Facts
On October 6, 1998,2 the Petitioner, John Morehead, a
unit employee, filed a petition seeking to decertify the
Union. During the course of the subsequent election
campaign, the Petitioner and employees Ken Klar, Rich-
ard Lidh, and Roger Steele sent six mass e-mails support-
ing decertification to virtually the entire unit of approxi-
mately 1100 employees. In addition, two e-mails were
sent by decertification “leaders”3 to smaller portions of
the bargaining unit (ranging from 50 to 350 employees)4
and “thousands” of e-mail messages were exchanged
between individual pro and antidecertification employ-
ees.5
The Union protested the Petitioner’s use of e-mail on
several occasions during the election campaign and re-
quested the Employer to put a stop to it. Although on one
occasion the Employer’s vice president told the Union
that the Employer was “looking into it,” and on another
occasion a human resources manager told the Union that
the Employer would “take care of it; it’ll stop,” the Em-
ployer did not direct the Petitioner to stop using its e-
mail system in connection with the decertification cam-
paign.

1 The Employer and the Petitioner have excepted to some of the
hearing officer’s credibility findings. The Board’s established policy is
not to overrule a hearing officer’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find
no basis for reversing the findings.
The Petitioner also asserts that the hearing officer’s findings and
conclusions are the product of bias in favor of the Union. We have
carefully examined the record and find no merit to this allegation.
2 All dates hereafter are in 1998.
3 See fn. 8, infra.
4 Klar sent an additional e-mail concerning the decertification peti-
tion to more than 15 employees on October 1, prior to the critical pe-
riod.
5 Some of the e-mails, including some of the mass e-mails, were sent
by employees from their computers at work; others were sent by em-
ployees from their home computers.
The Employer maintains a policy concerning solicita-
tion and concerning distribution of literature. The policy
prohibits solicitation during “working time,” and prohib-
its the distribution of “leaflets, pamphlets, circulars,
chain letters, or other printed material” in working areas
or during the working time of the person distributing or
receiving the literature. This policy states, in pertinent
part:

Solicitation No employee shall solicit or pro-
mote subscriptions, pledges, memberships or other
types of support for any drives, campaigns, causes or
organizations on Company property during the as-
signed working times of either the employee(s) en-
gaging in such activity or the employee(s) at whom
such activity is directed unless authorized by man-
agement.
Distribution of Literature Distribution or circu-
lation of leaflets, pamphlets, circulars, chain letters,
or other printed materials is likewise not permitted
during the assigned working times of either the em-
ployee(s) at whom such activity is directed or in
work areas. All literature to be distributed in accor-
dance with this rule, except that dealing with pro-
tected, concerted activities, such as union matters,
collective bargaining, or labor relations, must be
submitted to the Human Resources department for
prior approval. No prior approval need be obtained
for distribution of literature dealing with protected,
concerted employee activities in non-work areas dur-
ing the non-working times of both the employee(s)
engaging in such activity and the employee(s) at
whom such activity is directed.

The Employer also maintains a policy (corporate pol-
icy statement 007) stating that its “property, materials,
equipment, facilities, information, and resources” are to
be used for the Employer’s business, but permits “occa-
sional personal use” during nonworktime if it is of rea-
sonable duration and frequency, does not interfere with
the employee’s performance, and is not “in support of a
personal business.” Personal use of e-mail, in compliance
with these guidelines, is specifically authorized.6
6 This policy states, in pertinent part:
2.1 Lockheed Martin property, materials, equipment, facilities, in-
formation, and resources, hereinafter collectively referred to as
“assets,” are intended to be used for the conduct of the Corpora-
tion’s business. It is recognized, however, that occasional per-
sonal use of such assets by employees may occur without ad-
versely affecting the interests of the Corporation. . . .
2.3 It is not possible to define certain terms . . . such as . . . occasional
by means of a specific number. It is believed, however, that a
common sense determination should dictate what one should do
331 NLRB No. 104
LOCKHEED MARTIN CORP. 853
During the election campaign period, the Union sent
three interoffice mailings regarding the election using the
Employer’s interoffice mail system (referred to by the
parties as “pony mail”). The Union also posted its cam-
paign materials on bulletin boards assigned to the Union
throughout the Employer’s facility, and union officials
and supporters placed campaign literature on individual
employees’ desks. Prior to December 11, the Union did
not send any mass e-mails concerning the election cam-
paign using the Employer’s e-mail system. The Union’s
president testified that he did not learn how to use e-mail
until after the campaign had commenced and that he
viewed interoffice mail and direct solicitation as effective
methods of communication.7
On December 10 the Union by letter requested permis-
sion to use the Employer’s e-mail system to send no
more than three e-mails related to the election. The Un-
ion stated that its request was made “in order to remedy
the discriminatory manner in which [the e-mail system]
has been used to date.” The next day, the Employer
granted the Union’s request, as a “one-time-only authori-
zation,” and granted the same accommodation to the Pe-
titioner. The Union sent one mass e-mail pursuant to this
authorization. Although not mentioned by the hearing
officer, the record reflects that in December, during the
decertification campaign, the Employer, at the Union’s
request, sent a mass e-mail to all unit employees remind-
ing them of the Union’s scheduled contract ratification
vote.
The record also reflects that, prior to the election, the
Employer disciplined employees who used its e-mail
system for certain nonwork-related purposes including:
running a travel-related business; for communications
related to an employee’s external pornographic web site;
and sending “inappropriate material” to coworkers such
as off-color jokes and ethnic comments. In each case, the
Employer acted after receiving complaints about the
manner in which its e-mail system was being used. In
early December, the Employer also requested that em-
ployees stop using its e-mail system to send holiday-
related e-mails which included large image, video, and/or
audio file attachments, because these messages were

in a particular circumstance. The final determination of appropri-
ate use is reserved to local management.
3.1 Occasional personal use of Lockheed Martin assets is permitted
subject to the following. . . .
3.1.1 The activity must take place during non-work time, be of reason-
able duration and frequency, and must not interfere with or ad-
versely affect the employee’s performance or other organization
requirements.
3.1.3 The activity must not be in support of a personal business . . . nor
for any illegal purpose or purpose which would cause embar-
rassment to Lockheed Martin or otherwise be adverse to its inter-
ests. . . .
3.3 Personal use of electronic mail systems . . . is permitted provided
that such use is consistent with the[se] guidelines.
7 The Union’s officers, including its president, are bargaining unit em-
ployees.
placing a significant burden on its e-mail servers and
delaying e-mail transmissions. However, no employees
were disciplined in connection with this episode.
The record reflects widespread use of the Employer’s
e-mail system by employees to plan social activities,
trade jokes, and send personal messages to family mem-
bers, friends, and other nonemployees. Consistent with
its policy 007, the Employer has not disciplined employ-
ees for using its e-mail system to send or receive non-
work-related messages of this type.
The campaign-related messages sent by the Petitioner
and his supporters and discussed above included a salary
survey sent by Klar by e-mail in November to approxi-
mately 350 unit employees and a December 12 e-mail
sent to virtually the entire unit entitled “Salary Trends”
which disclosed the results of the survey and argued that
unit employees were underpaid relative to engineers at
other companies. After learning of the salary survey, the
Employer cautioned Klar against using the e-mail system
for this purpose.
The Hearing Officer’s Report
The hearing officer found that the mass e-mails sent by
the Petitioner and his supporters violated the Employer’s
solicitation and distribution of literature policy and the
policy regarding the personal use of company assets.8 In
addition, the hearing officer found that, although the
Employer was aware of the Petitioner’s use of mass e-
mail messages in the election campaign, and the Union’s
objections thereto, the Employer made no attempt to
clarify its policies or to investigate potential abuses.
The hearing officer found that the Union could rea-
sonably have believed that the Employer’s rules prohib-
ited campaigning by e-mail. Accordingly, the hearing
officer found that the Employer was responsible for the
Union’s failure to use e-mail in connection with the cam-
paign prior to the Employer’s December 11 letter
allowing it to send three e-mails. The hearing officer
discounted evidence that the Union could have used, but
chose not to use, the Employer’s e-mail system in con-
nection with the election campaign, including its failure
to take full advantage of the Employer’s December 11
offer, on the grounds that “the issue must be decided on
objective, not subjective grounds.”9 In essence, the hear-
8 The Employer also maintains a policy regarding political activity in
the workplace. The hearing officer found that the Petitioner’s use of e-
mail did not violate this policy and there are no exceptions to this find-
ing.
The hearing officer also found that the Petitioner, Morehead, and
employees Klar, Lidh, and Steele were the “leaders” of the decertifica-
tion campaign and, without further discussion, found that the actions of
Klar, Lidh, and Steele were attributable to the Petitioner. We view this
finding as an implicit determination that Klar, Lidh, and Steele were
agents of the Petitioner and, in the absence of any exceptions, we adopt
it.
9 The hearing officer cited Gray Drug Stores, 197 NLRB 924 (1972)
(employer engaged in objectionable conduct by failing to timely submit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
ing officer found that, by failing to dispel the Union’s
fear that its supporters would be disciplined if they en-
gaged in the same conduct that the Petitioner’s support-
ers were engaging in, with impunity, the Employer en-
gaged in disparate discriminatory nonenforcement of its
(otherwise valid) rules, which gave the Petitioner an ad-
vantage in the campaign, and thereby engaged in objec-
tionable conduct.10
Although not the subject of any timely objection, the
hearing officer found that the Employer gave the Peti-
tioner an additional advantage by providing Lidh with an
employee seniority list prior to the date the petition was
filed. The Petitioner, Klar, Lidh, and Steele, used this
list, which was also provided to the Union, to compile
the e-mail addresses of unit employees.
Analysis
“Representation elections are not lightly set aside.”
NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328
(5th Cir. 1991) (citing NLRB v. Monroe Auto Equipment
Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert. denied
412 U.S. 928 (1973)), cited in Antioch Rock & Ready
Mix, 327 NLRB 1091 (1999). “There is a strong pre-
sumption that ballots cast under specific NLRB proce-
dural safeguards reflect the true desires of the employ-
ees.” NLRB v. Hood Furniture Mfg. Co., supra at 328.
Accordingly, “the burden of proof on parties seeking to
have a Board-supervised election set aside is a ‘heavy
one.’” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th
Cir. 1989) (quoting Harlan #4 Coal Co. v. NLRB, 490
F.2d 117, 120 (6th Cir. 1974), cert. denied 416 U.S. 986
(1974). See also Chicago Metallic Corp., 273 NLRB
1677, 1704 fn. 163 (1985), quoting Valley Rock Products
v. NLRB, 590 F.2d 300, 302 (9th Cir. 1979). The object-
ing party must show, inter alia, that the conduct in ques-
tion affected employees in the voting unit. Avante at
Boca Raton, Inc., 323 NLRB 555, 560 (1997). A party’s
conduct cannot be the basis for setting aside the election
unless it reasonably tended to interfere with the employ-
ees’ free and uncoerced choice in the election. Baja’s
Place, 268 NLRB 868 (1984). And the objecting party
must establish dissemination of statements allegedly in-
terfering with preelection conditions; dissemination will
not be presumed. Kokomo Tube Co., 280 NLRB 357, 358
fn. 9 (1986).
Applying these standards, we find that the Union has
not established that this election must be set aside. There
is no contention in this case, nor any finding, that the
Employer’s rules are objectionable on their face. Rather,

list of the names and addresses of unit employees regardless of whether
union already had information).
10 The hearing officer cited to Northeastern University, 235 NLRB
858 (1978), enfd. in pert. part 601 F.2d 1208 (1st Cir. 1979), and Co-
lumbia University, 225 NLRB 185 (1976) (discriminatory denial of
prounion employees’ request to hold meetings at the employer’s facili-
ties while allowing antiunion employees to hold meetings violated Sec.
8(a)(1)).
the hearing officer found, in effect, that the Employer
gave the Petitioner an advantage by allowing it to use the
e-mail system, in violation of the Employer’s rules, while
the Union, believing itself to be constrained by those
rules, did not use the e-mail system. For the purpose of
this decision only, we shall assume, without deciding,
that the Employer’s rules could reasonably be read to
prohibit mass e-mails of the type sent by the Petitioner.
However, as noted above, the Employer’s alleged failure
to enforce those rules against the Petitioner cannot be the
basis for setting aside the election unless it reasonably
tended to interfere with the employees’ free and unco-
erced choice in the election. As shown below, it did not.11
Contrary to the hearing officer, under all the circum-
stances of this case, we cannot agree that the Union was
placed at a disadvantage relative to the Petitioner based
solely on the Petitioner’s greater use of the e-mail system
in the election. Initially, we stress that any disparity in
the use of the e-mail system is at least to some degree the
result of the Union’s choice to send only one e-mail pur-
suant to the Employer’s December 11 authorization,
which explicitly granted permission to the Union to send
three.12 The Employer’s authorization, moreover, repre-
sented approval in full of the Union’s only request.13 We
cannot fault the Employer for the Union’s subsequent
failure to take full advantage of the opportunity to use the
e-mail system presented to it.
11 In light of our disposition of this case, we do not pass on the Em-
ployer’s and the Petitioner’s exceptions to the hearing officer’s finding
that the Petitioner’s use of the Employer’s e-mail system violated the
Employer’s rules.
12 The hearing officer discounted the significance of this evidence on
the grounds that it was “subjective.” We do not agree. The question
presented is whether the Employer’s alleged failure to enforce its rules
against the Petitioner gave the Petitioner an advantage in the election.
Evidence concerning the Union’s communications with the voting unit,
including its e-mail communications, is plainly relevant to this inquiry.
Regarding the hearing officer’s reliance on Gray Drug Stores, see
fn. 9, supra, we note that the Board requires an employer to provide a
list containing the full names and addresses of all eligible voters prior
to Board-conducted elections. Excelsior Underwear, 156 NLRB 1236
(1966); see also North Macon Health Care Facility, 315 NLRB 359
(1994). In cases involving noncompliance with this requirement, the
Board has held that it will “presume . . . that the Employer’s failure to
provide a substantially complete eligibility list had a prejudicial effect
upon the election . . .” without an inquiry into whether the union was
able to contact employees without the list. Sonfarrel, Inc., 188 NLRB
969, 970 (1971). Contrary to the hearing officer, these principles have
no application in the circumstances of this case. There is no per se rule
that an employer must allow the parties to an election to use its e-mail
system comparable to the Excelsior list requirement discussed above,
and there is, accordingly, no basis for presuming that an employer’s
failure to provide such access constitutes objectionable conduct.
13 Accordingly, this case is distinguishable from Northeastern Uni-
versity and Columbia University, supra. In those cases, the employer
discriminatorily denied permission to use its facilities to employees for
the purpose of engaging in protected activities. Here, by contrast, the
Employer did not deny any party access to anything. To the contrary,
when the Union requested access to the e-mail system the Employer
immediately and in full granted the Union’s request.
LOCKHEED MARTIN CORP. 855
Likewise, it appears from the record that the Union’s
failure to use the e-mail system prior to December 10
was based on its preference for traditional methods of
communication. There is no evidence that the Union
wished to communicate with unit employees regarding
the election by e-mail during this period of time. While
the Union complained about the Petitioner’s use of the e-
mail system, the Union never requested that the Em-
ployer “clarify” its policies regarding the permissible use
of e-mail in the campaign. Under these circumstances,
there is no basis for finding that the Employer’s failure to
sua sponte clarify its rules constituted objectionable con-
duct.
Our dissenting colleague nevertheless asserts that the
Employer “encouraged and took advantage of” an “im-
balance in communications, effectively precluding em-
ployees from fully hearing from both sides, the Union
and the decertification petitioner.” We respectfully dis-
agree. As discussed above, the Union mounted a vigor-
ous campaign, which included the widespread distribu-
tion of its election materials via the Employer’s interof-
fice-mail, the posting of literature on the Employer’s
bulletin boards, and the distribution of literature in the
workplace itself by union officials. It is undisputed that
the Employer facilitated and cooperated with these ef-
forts. Thus, the record evidence in this case simply does
not support the dissent’s contention that there was an
imbalance in communications, much less that any unit
employee was “precluded” from “fully” hearing the Un-
ion’s message.14 There is also no evidence that the Em-
ployer somehow “took advantage of” the Union’s use of
traditional means of communication instead of e-mail.
There is also no evidence that the Employer’s alleged
nonenforcement of its rules regarding the use of its e-
mail system was disseminated to eligible voters prior to
the election. Rather, from the perspective of the unit em-
ployees, the Union freely disseminated its message
through interoffice mail, direct solicitation, and, after
December 11, through the Employer’s e-mail system,
without any protest or repercussions from the Employer.
There is no evidence that unit employees generally were
aware that the Union had complained to the Employer
concerning the Petitioner’s use of the e-mail system, that
the Employer had offered to “put a stop to it,” or that the
Union had requested permission to use the e-mail system
and the Employer, by its December 11 letter, had granted
the Union’s request on a “one-time-only” basis. More-
over, the Employer’s failure to take any action against
the Petitioner was consistent with its general practice of
allowing its employees wide latitude in using its e-mail
system for “non-business” purposes before, as well as

14 To the extent that our dissenting colleague argues that the distribu-
tion of campaign materials by e-mail is inherently more effective than
distribution by more traditional means, there is also no record support
for this proposition.
during, the decertification campaign.15 Thus, there is no
reason to believe that employees reasonably perceived,
from the Employer’s handling of the Petitioner’s use of
the e-mail system, that the Employer discriminated
against the Union, much less that employees were co-
erced thereby in their choice regarding their bargaining
representative.
Under all of the circumstances, we find that the Em-
ployer did not engage in conduct having a reasonable
tendency to interfere with employee free choice.16 Ac-
cordingly, we shall overrule the Union’s objection.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Engineers and Scientists Guild, Lock-
heed Section and that it is not the exclusive collective-
bargaining representative of these bargaining unit em-
ployees.

MEMBER LIEBMAN, dissenting.
This case involves employee use of e-mail, an evolv-
ing and powerful means of workplace communication.
At issue are not the difficult questions of whether, or to
what extent, employers can regulate workplace use of e-
mail by employees in election campaigns. The Board has
yet to tackle those issues. Rather, this case involves a
basic question of fairness. The Employer tacitly allowed
the decertification petitioner to send repeated mass e-
mailings to coworkers. At the same time, it ignored
complaints about these e-mailings by the union represen-
tative (himself a unit employee), who believed that com-
pany rules prohibited use of e-mail for mass mailings of
this sort. By its responses, or failure to respond, to the
Union’s pleas, the Employer actually reinforced the Un-
ion’s hesitancy. It effectively denied the Union equal
access to this powerful modern means of communicating
with the work force and thereby impaired the employees’
Section 7 right to make a fully informed choice in this
election. This election took place in a large unit and was
decided by a very small margin. It should be set aside.
Like my colleagues, I find it unnecessary to decide
whether the Petitioner’s repeated use of the Employer’s
15 This past practice, which is undisputed, includes the Employer’s
sending a mass e-mail during the election campaign, at the Union’s
request, reminding unit employees of the Union’s contract ratification
vote. In light of our disposition of this case, we find it unnecessary to
pass on the Employer’s contention that, under these circumstances, it
was precluded from denying the use of its e-mail system to the Peti-
tioner. See E. I. du Pont & Co., 311 NLRB 893, 919 (1993) (employer
unlawfully prohibited e-mail messages for or about union, where per-
sonal messages and messages by employer-dominated labor organiza-
tions were allowed).
16 We reject, as completely unfounded, the hearing officer’s finding
that the Employer afforded the Petitioner with “an additional advan-
tage” by providing the Petitioner with a copy of the seniority list. Even
assuming that this issue is properly before us (the Employer’s provision
of this list to the Petitioner was not the subject of any timely objection),
we do not agree that the Petitioner derived any advantage from possess-
ing this list when the evidence is clear that the Union at all times had
access to it as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
e-mail system to campaign against the Union actually
violated work rules on solicitation, distribution, and e-
mail usage. More importantly, as my colleagues concede,
at least for the purpose of this decision, the Employer’s
rules could reasonably be read to prohibit mass e-mails
like those sent by the Petitioner. Clearly, that is how the
Union understood these rules. But, when the Union re-
peatedly protested what it reasonably believed were the
Petitioner’s substantial ongoing violations of these rules,
the Employer simply gave the Union the brushoff. Obvi-
ously, the Petitioner and Union held very different views
of what the Company’s e-mail policies permitted. But,
by failing to clarify its policies, the Employer encour-
aged and took advantage of the imbalance in communi-
cations, effectively precluding employees from fully
hearing from both sides, the Union and the decertifica-
tion petitioner. In my view, this conduct impaired em-
ployee free and fully informed choice and defeated the
fairness of the election itself.1
The facts are not in dispute. On October 20, 1998,2
early in the critical period, and 2 full months before the
election, the Union filed an unfair labor practice charge
against the Employer. It alleged that the Employer was
unlawfully assisting the Petitioner’s decertification cam-
paign by allowing the Petitioner to use the Employer’s e-
mail system in violation of the Employer’s rules. The
next day, the Union wrote to the Employer “formally
requesting that Lockheed Martin Skunk Works immedi-
ately enforce its internet/e-mail policy to halt employees’
personal and ongoing use of the company internet/e-mail
in support of the decertification petition.” The Union
asserted in this letter that “such conduct is both illegal
and in violation of written company policy.” The Em-
ployer never responded. Indeed, even after the Union
withdrew the unfair labor practice charge 3 days later, so
as not to interfere with ongoing bargaining, the Employer
still made no attempt to clarify its e-mail policies for the
obviously apprehensive union.
Around this same time in October, Union President
Dale Herron spoke to Employer Human Relations Man-
ager Haydu. He objected to the Petitioner’s continued
use of the Employer’s e-mail system in its decertification
campaign. Haydu acknowledged that it was “still going
on,” but told Herron “don’t worry about it, we’ll take
care of it; it’ll stop.” But again, and contrary to these
assurances, the Employer made no attempt to curtail the
Petitioner’s use of the Employer’s e-mail system. Nor
did it make any attempt to clarify its e-mail policies for
the Union.
In November, Union Consultant Ammond telephoned
Employer Vice President Robert MacPherson to com-
plain about the Petitioner’s continued use of the Em-

1 See NLRB v. Golden Age Beverage Co., 415 F.2d 26, 29 (5th Cir.
1969) (Board is responsible for determining whether an election “was
fairly or unfairly conducted”).
2 All dates are in 1998.
ployer’s e-mail system in the decertification campaign.
MacPherson told Ammond that he would “look into it.”
But MacPherson’s only response was to scan his own
mail and ask his own staff if anything was “out of the
ordinary.” When MacPherson got no response from his
staff, he simply dropped the matter entirely. He neither
investigated possible violations of the Employer’s e-mail
policies by the Petitioner, nor clarified those policies for
the Union.
My colleagues and I essentially agree that the Em-
ployer’s rules reasonably could be understood to prohibit
mass e-mails like those sent by the Petitioner, and in-
deed, the Union reasonably understood the rules that
way. Consistent with that understanding, the Union re-
peatedly complained to the Employer about the Peti-
tioner’s use of the e-mail system to communicate his
views in the campaign. The Employer reinforced the
Union’s understanding by telling the Union that it would
put a stop to the Petitioner’s campaign e-mails. But, it
never did. Nor, just as critically, did the Employer ever
clarify its e-mail policies for the Union. Instead, the
Employer just left the Union believing that it could not
use the Employer’s e-mail system to communicate with
the work force in support of its campaign.
Nonetheless, my colleagues dispute that the Union
ever expressly asked the Employer to clarify its e-mail
policies for this election campaign. Surely, this quibbling
elevates form over substance. As they acknowledge, the
Union repeatedly protested the Petitioner’s extensive use
of e-mail during the campaign and asked the Employer to
put a stop to it. Obviously, the Union believed the Em-
ployer’s policies prohibited such use. And, just as obvi-
ously, faced with such complaints, the Employer could
have told the Union that the Petitioner’s use of e-mail did
not violate its policies. But, it never did so. That, of
course, would have left the Union free to use e-mail for
its campaign communications. Instead, the Employer
ignored the Union, turning this opportunity to its advan-
tage. By assuring the Union that it would “put a stop to”
the Petitioner’s use of the e-mail system, it actually rein-
forced the Union’s belief that e-mail was prohibited for
campaign purposes. And, by its subsequent inaction, the
Employer effectively denied the Union access to this
means of communication for nearly the entire campaign,
while allowing the Petitioner and his supporters to e-mail
repeatedly and effectively.
Contrary to my colleagues’ assertion, I am not relying
on any general “duty” on the part of the Employer to sua
sponte clarify its e-mail policies for the Union’s benefit.
Rather, I am holding the Employer to a standard of fair-
ness and a duty to treat the decertification petitioner and
the Union evenhandedly, giving advantage to neither,
whether directly or indirectly, as here. The facts cried
out for a clarification by the Employer of its policies.
Yet, none was forthcoming. By its inaction, the Em-
ployer perpetuated an imbalance that impaired its em-
LOCKHEED MARTIN CORP. 857
ployees’ “Section 7 right to make a ‘fully-informed’
choice in an election.” Thiele Industries, 325 NLRB
1122 (1998) (“purpose of Excelsior rule is to protect that
right”).
My colleagues also dispute that there was ultimately
any interference with the election. They say that (1) the
Employer eventually gave the Union express permission
to use the e-mail system, about a week before the elec-
tion; (2) the Union made substantial use of the Em-
ployer’s intracompany mail system, referred to as “pony
mail,” as well as bulletin boards and direct distribution of
campaign literature in communicating its campaign mes-
sages to the employees; and (3) the Employer’s nonen-
forcement of its e-mail policies was not disseminated to
the employees prior to the election, i.e., the employees
were not generally aware that the Union had repeatedly
but unsuccessfully complained to the Employer about the
Petitioner’s use of the Employer’s e-mail system.
These are red herrings. Failing to get the Employer to
stop the Petitioner, the Union finally sought permission
to use the e-mail system, and the Employer granted it.
But this did not occur until the last week of the cam-
paign. The Petitioner, on the other hand, was free to and
did make widespread use of e-mails throughout the cam-
paign. Nor did the Union’s use of the Employer’s “pony
mail,” bulletin boards, and personal distribution compen-
sate for or right the imbalance. Today, these forms of
communicating are just not the same as e-mail. It is by
now beyond dispute that e-mail is a most effective means
of communication. It is a particularly powerful organiz-
ing tool. Fast and easy to send, e-mail messages are im-
mediately accessible to their audience and have a more
direct impact than messages sent by other means. But,
equal access to this form of communication was effec-
tively denied the Union. By its action, or inaction, the
Employer allowed one party to this election, but not the
other, to make widespread use of this modern and highly
potent method of communication and thereby impaired
employees’ right to hear both points of view in this de-
certification campaign.
Finally, dissemination of the Employer’s objectionable
conduct to the employees is irrelevant. The issue is not
whether the employees would perceive the Union as be-
ing weak and ineffectual in failing to get the Employer to
stop the Petitioner from using the Employer’s e-mail
system. The issue, rather, is whether the Union was rea-
sonably disadvantaged in its efforts to communicate its
campaign messages to the unit employees by the Em-
ployer’s repeated failure to clarify its policy on the use of
its e-mail system for campaign purposes, and whether the
rights of unit employees were impaired as a result.
For all of the reasons discussed above, I find that the
Union was so disadvantaged, and that the Section 7 right
of employees to make a fully informed choice in this
election has been so impaired as to affect the results of
the election. As a matter of fundamental fairness, I there-
fore would set aside the election.