Business-only E-mail Policies in the Labor Organizing Context: It Is Time to Recognize Employee and Employer Rights.

• Author: Weiner, Allegra Kirsten

1. INTRODUCTION

   Technological advances are expanding the medium and increasing the speed of communication. Society is adapting and so must the law. The Uniform Commercial Code (UCC) reflects these changes in many aspects, including a section decreasing the time periods that banks are allowed to dishonor checks.(1) In the United States, Congress has enacted new laws that protect privacy of information in order to control the information that passes in the growing commercial market.(2) E-mail is now admissible as proof for employment discrimination(3) and defamation(4) cases. Congress adapted copyright laws to include information exchanged via e-mail and the Internet.(5) It only seems natural that labor law will acclimate to cyberspace along with the rest of society.

   The effects of cyberspace in labor law are the most prevalent with union organizing activity. The use of an employer's e-mail system is a new, unique, and efficient tool that could enable labor organizers to reach a larger number of employees in a shorter amount of time. With the use of email and a list of e-mail addresses, a union officer could contact thousands of employees with one letter in a matter of seconds. Strikes could be announced at a moment's notice. Meetings could be scheduled, rescheduled, or even occur over e-mail. The organizers no longer have to leave their own offices to reach the workers. Access to employer e-mail systems would lift a boundary--that is, if the employees are granted use of the employer's e-mail system for protected concerted organizing activity.

   The employees have a major hurdle before they can freely use company e-mail--it is the employer's e-mail system. The employer pays for the computers, programs, technical support staff, and the employee's time while the employee uses the system. So, in conjunction with organizing power, cyberspace extends the boundaries of employer property rights. Although it is crucial to allow employees the ability to organize, employer rights may not be unreasonably infringed. There must be a balance of employer's property fight interests with the employee's fights to organize.

   Where does the National Labor Relations Act (NLRA) fall on the issue of whether e-mail is the employer's tool or the employee's tool? The National Labor Relations Board (NLRB or Board) has not had the opportunity to decide this issue. Hence, employers and employees are left wondering what uses of e-mail are permissible in the labor context. This is a very prevalent concern. Not only is e-mail becoming a common tool in the workplace, but it is also a very common tool in the organizing context. There are Web sites covering the Internet that link viewers to union literature, union official applications, and a list of union Web pages.(6)

   This Note focuses on the next step the NLRB must take to bring labor law up to speed with technology. With guidance from the NLRA and previous NLRB and court decisions, this Note demonstrates that employer property interests in e-mail systems may not be ignored when dealing with e-mail in the labor organizing context. Due to the fact that the NLRB consistently has ruled that forms of employee written communication, labeled "distribution" in the organizing context, may be nondiscriminatorily limited with a showing of legitimate business; interests, employees' personal use of company e-mail systems may be prohibited. This is not a pro-employer or pro-employee position, just an efficient and effective solution. Both the employer and employee must sacrifice with a business-only e-mail policy but less rights overall will be infringed.

2. BACKGROUND

   To understand the issues that arise when unions and employees have unlimited access to employer e-mail systems, it is important to grasp the purpose and substance of the NLRA. The NLRA's dominant purpose is to foster the "right of employees to organize for mutual aid without employer interference."(7) This purpose is achieved through setting out the rights of employees and consequences for those who do not follow the NLRA. The pertinent sections of the NLRA, when dealing with rights to employer provided mediums of communication, are (1) 29 U.S.C. [sections] 157, which sets out employee rights:

   Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title[;](8) (2) 29 U.S.C [sections] 158(a)(1), which states "[i]t shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title";(9) and (3) 29 U.S.C. [sections] 158(a)(3), which explains "[i]t shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.... "(10) The NLRB then applies the NLRA general language according to specific facts, which allows a certain amount of flexibility within the statutory limitations. If the NLRB decides that the employer's practice does constitute an unfair labor practice, it institutes remedies such as back pay, reinstatement of work for discharged employees, and rescission of the unlawful rule.(11)

   An employee's use of an employer's e-mail system comes under issue in the NLRA because, due to the nature of e-mail and cyberspace generally, it is not clear exactly whether communicating over e-mail is considered a protected "concerted activity." A concerted activity includes both traditional union organizing efforts but also any worker activity that is "in some way ... in concert with the efforts of at least one other worker or... based on a right provided by a collectively bargained agreement."(12) In the past, the Board considered union organizing communication a protected concerted activity based on a distinction of whether the union communication is considered solicitation or distribution. However, the NLRB has not decided which category e-mail fits and is therefore a pivotal issue. If the Board decides that cyberspace belongs to the employees, the Board allows union organizing efforts to trump employer rights in company e-mail systems, and employer interests are completely ignored. Therefore, the NLRB must decide that e-mail is distribution under the labor standards, and as a result the employer may have a business-only policy for company e-mail systems.

3. SOLICITATION VS. DISTRIBUTION: APPLICATION TO CYBERSPACE

   Solicitation "normally involves oral communications between

   workers regarding organizing."(13) This form of communication is especially protected due the nature of face-to-face communication. Hence, "a rule against solicitation is invalid as to union solicitation on the employer's premises during employee's own time" and is therefore a section 8(a)(3) violation.(14) The principal behind this presumption is to stop the employer from controlling union activity by denying access to company property. An example of the NLRB ruling that a nondiscriminatory, no-solicitation rule is invalid is Republic Aviation Corp.,(15) where an employee was wearing a union steward button while passing out union cards on employer's property during nonworking hours.(16) The employer discharged the employee due to a no-solicitation rule prohibiting any and all solicitation in the plant.(17) Even though the employer did not apply the rule in a manner as to discriminate solely against union supporters, the Board still ruled that this was an "unreasonable impediment to self-organization" and was unlawful given the absence of special circumstances.(18)

   If the court considers that organizing activity is solicitation, there are still some limits. The employer can enforce a rule prohibiting union solicitation during working hours as long as the rule is not adopted for the purpose of discrimination against union activity.(19) After all, "[w]orking time is for work,"(20) and the employer's work-time productivity is not expected to suffer because employees are not fulfilling their job responsibilities due to union organizing activity. Basically, the NLRB will permit a no-solicitation rule if limited to working time and not targeted at union-related activity.

   Distribution, on the other hand, "[normally] involves the circulation of written union literature by [an] employee."(21) An employer has more rights when employee communication falls into this category because, due to the nature of the communication, it can be handed out but read at another time. There is, however, a distinction between...