Union Organizing In A Computerized Workplace

June 13, 2000 by Beeson Tayer & Bodine

The Desktop Revolt

Although the way people work is changing dramatically, the courts and the National Labor Relations Board are only beginning to grapple with some of the issues arising in today’s computerized workplaces. The Board has yet to decide, for example, whether a unionized company can unilaterally monitor employee use of company e-mail systems. That widespread practice seems to contradict previous NLRB rulings on privacy and workplace monitoring, which require an employer to bargain with the Union before they can test for drugs or point hidden surveillance cameras at workers.

Employees faced with discipline for sending e-mail that management considers inappropriate have not had much success with invasion of privacy claims. The courts have generally reasoned that since employers own the computers, they can do whatever they want with them. However, several recent NLRB cases have found that employee use of e-mail to communicate about working conditions is protected activity.

In one recent case, an employee was fired after he disparaged a new company vacation plan via e-mail. The new policy announced that the company would close for approximately two weeks each year and that the company would adjust the number of paid days off over several years to reflect the change. “You actually get more days off each year,” the memo said. But that didn’t sound right to one employee who performed his own calculations and then e-mailed his co-workers the resulting figures which proved the company wrong.

The “wise guy,” in the words of the presiding administrative law judge, filed a charge with the NLRB after he was terminated for sending the e-mail. The NLRB ruled the e-mail communication to be protected, concerted activity involving the terms and condition of work and ordered the employee reinstated with backpay.

In a second recent case, the NLRB General Counsel in an “advice memo,” addressed an issue not raised in the first case: may an employer impose a ban on all non-business use of its e-mail system?

These cases represent the Board’s attempt to apply old law to new technology.

Communication between workers about wages, hours and working conditions is protected by section 7 of the National Labor Relations Act. But, this right is limited by the Board’s and the Court’s recognition of the employer’s managerial and property rights. In order to balance these competing rights, the Board long ago developed rules for employee communication protected by Section 7.

The Board’s rule for “solicitation” (defined as a communication expected to initiate a conversation, such as a breakroom conversation) is slightly different from its rule for “distribution” (a one-sided communication, such as distributing leaflets). If a communication is “solicitation,” it must be permitted in all work areas in the absence of an overriding employer interest. If it is a “distribution,” it may be prohibited in work areas unless the employees have no available non-work areas.

Legally speaking then, is e-mail more like a phone call, which as solicitation would be permitted in all work areas absent evidence of an overriding employer interest; or more like a note, which may be prohibited in work areas under the “distribution” rule? Is a computer equivalent to a company bulletin board, which employers can regulate almost at will, or more like a work space, which they can’t?

Both forms of communication may be further limited to non-working time. But, what is the definition of “work-time” in a workplace where the line between working time and non-working time is flexible, such as frequently the case for employees whose work is primarily spent before computer terminals?

The NLRB General Counsel concluded that at least some e-mail warrants treatment as oral solicitation and employer rules prohibiting such solicitation during non-working time should be presumed unlawful. “A minimal burden placed upon an employer’s computer network by such electronic traffic does not constitute special circumstances making the rule necessary to maintain production or discipline, and it should not outweigh the employee’s Section 7 interests.”

The Board has yet to address the rights of non-employee Union organizers to communicate with employees via e-mail. Traditionally, non-employee organizers can be excluded from company property absent proof that there was no other means to contact employees. Such a policy must be non-discriminatory however, so the employer must be willing and technologically capable of prohibiting all non-business e-mails from addresses off the employer’s premises.

The proliferation of computers in virtually all industries and their use by many workers present new approaches for Union organizing. We will be working to keep this avenue for organizing and employee communication open and unrestricted.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.