(Net)workers' rights: the NLRA and employee electronic communications.

• Author: Broder, Elena N.

[M]ost of our models for information technology today are industrial

models. The notion of an office really is just a wholesale transposition

of industrial processes. We process words in the same way we process

metal to put into a car. And when you have a processing mentality,

a place for processing, like an office, is essential. But the moment we

abandon that processing model and go to stranger and newer models,

then the idea of having a physical place where you go and sit down

and have a desk and a stapler and all that becomes very quaint.(1)

INTRODUCTION

The notion of "going to work" may be an early casualty of the Digital Revolution. Today, manufacturing is no longer the dominant model of work.(2) Because many industries of the Information Age do not require heavy machinery and infrastructure, the physical centralization of labor that was a hallmark of the Industrial Revolution is waning. In mid-1994, a survey found that over seventy percent of large employers offered some employees the option of telecommuting-working at home while remaining connected to the office by telephone, facsimile machine, or computer network.(3) By the end of the decade, the number of U.S. users of electronic mail is projected nearly to triple from its 1993 level, in large part because of increased use by mobile employees.(4) Motivated by employers' desires to reduce real estate overhead,(5) as well as to accommodate personal needs of employees, a new employment setting is emerging: the (net)workplace.

Like the earlier transition from field to factory, the transition to the new workplace is not without problems. Some workers have rushed to the countryside, wooed by the promise of an end to rush hour, only to discover that pure telecommuting engenders poor morale and feelings of isolation.(6) At the same time, both telecommuters and workers in traditional offices complain that unbreakable electronic links to their work have eroded the last remaining distinctions between work and nonwork time.(7) Employers expect employees to "overwork" if they want to get ahead.(8)

Yet despite the new context, traditional employment concerns remain. As one commentator has noted:

Working in cyberspace will be, in many fundamental ways, radically

different than any sort of work humankind has ever done before. But

we can't forget that some of the basic issues will remain: fairness in

the workplace, privacy, health and safety, seniority, decent wages,

overtime, dignity and more. Cyberspace workers may be working in

a whole new frontier but in the end they remain workers with rights

to protect.(9)

How those rights will be protected is the concern of this Note. As workers who have common wages, benefits, working conditions, projects, and supervisors become geographically separated, they lose the opportunity to discuss their concerns in the breakroom. The one common space in which they can meet, despite their physical isolation, is cyberspace--often in the form of an employer-owned and -maintained Local Area Network (LAN) into which homebound employees telephone, a Wide Area Network (WAN) covering multiple offices, or the Internet. Because this network technology is devoted to improving communication, it is well suited for organizing widely dispersed employees who report to the same management and have the same work concerns but for whom isolation impedes organization through traditional means.(10) In addition to its value for organized labor, network communication seems uniquely conducive to assisting employees who may band together around timely concerns without forming long-term organizations, a group that includes many white-collar workers.(11) Yet, at present, whether employees may take advantage of the tremendous potential of network communication in order to discuss their employment concerns often depends on the whim of their employers.(12) And the National Labor Relations Act (NLRA), the primary legal mechanism that regulates employers' and employees' rights and responsibilities in this changed environment, dates from a time when the paradigmatic workplace was the factory.(13)

The NLRA bears the unmistakable imprint of its industrial origins. Its declaration of purpose states:

Experience has proved that protection by law of the right of

employees to organize and bargain collectively safeguards commerce

from injury, impairment, or interruption, and promotes the flow of

commerce by removing certain recognized sources of industrial strife

and unrest, by encouraging practices fundamental to the friendly

adjustment of industrial disputes arising out of differences as to

wages, hours, or other working conditions, and by restoring equality

of bargaining power between employers and employees.(14)

Communication among employees has always been a prerequisite for achieving this purpose. As an early National Labor Relations Board (NLRB) opinion explained:

It is clear that employees cannot realize the benefits of the right to

self-organization guaranteed them by the Act, unless there are

adequate avenues of communication open to them whereby they may

be informed or advised as to the precise nature of their rights under

the Act and of the advantages of self-organization, and may have

opportunities for the interchange of ideas necessary to the exercise of

their right to self-organization.(15)

When an employer rule "constitutes such a serious impediment to the freedom of communication which is essential to the exercise of the right to self-organization, . . . the right to self-organization must be held paramount, and the rule give way."(16)

This Note argues that despite changes in workplace context, the underlying values of the NLRA remain appropriate to protect the essential rights of (net)workers. Fifty years of NLRA enforcement have been guided by the need to maintain a delicate balance between the right of employees to act collectively to improve their conditions and benefits and that of employers to maintain production and discipline. Guaranteeing to employees who use electronic communication technology in the course of their jobs the right to use that technology for activity protected by the NLRA(17) develops logically from these precedents.(18)

To assure that the underlying purposes of the Act are fulfilled in an economy in which physically centralized industry no longer predominates, however, requires more than a mechanical application of existing labor law. Justice Powell's warning about applying labor law precedents in new work contexts should alert us to the dangers of uncritical application of such precedents:

The rule of Republic Aviation was adopted in the context of labor

relations in industrial and manufacturing plants .... The latter part

of the Board's set of presumptions reflects the reasonable inference,

based on the Board's experience with the actual facts of industrial

life, that such employers will not have legitimate reasons to restrict

employees' activities on their own time, even if on company property.

....

The rationality found to exist in Republic Aviation, and therefore

the validity of the presumption, cannot be transferred automatically to

other workplaces, for to do so would sever the connection between

the inference and the underlying proof.(19)

This Note heeds Powell's admonition to acknowledge the factual context of work in enforcing labor law. To this end, it reexamines the jurisprudential tests developed by the NLRB and the courts to achieve balance in the industrial workplace and evaluates their appropriateness for the (net)workplace.(20) Part I of the Note paints a picture of cyberspace and the (net)workplace by describing developing technologies and their increased use by businesses. Part II sets forth the legal framework governing employee communications, analyzing existing labor law to expose the principles currently at work. Part III argues that these principles promise (net)workers the right to communicate effectively at the jobsite but that the presumptions developed in traditional workplaces are inadequate to protect this right in the (net)workplace. Part IV proposes alternative methods of accommodating employer and employee rights in light of the realities of (net)work.

1. PICTURING THE (NET)WORKPLACE: TAKING CYBERSPACE SERIOUSLY

   Although a pure (net)workplace, one with no physical component, exists only on paper today,(21) the shift to networking is underway even where employees still share office space. At least one company has eliminated most traditional methods of communication from its offices: Sun Microsystems has no phone directory, no public-address system, and no memo pads or stationery; instead, its employees each receive an average of 160 e-mail messages a day, for a company total of about two million messages daily.(22) Although such exclusive use of electronic communication is not yet common, a recent survey of fifty Fortune 1000 companies found that more than fifty-five percent of their employees had electronic mail.(23) E-mail usage is prevalent across industries.(24) Moreover, the fact that workers in their late twenties and early thirties use e-mail most frequently suggests that the trend toward greater use of electronic communications will continue in the decades ahead.(25)

   Although e-mail is the type of electronic communication most often used by businesses at present, the ever-expanding repertoire of network technologies offers many other potentially valuable forms. Many of these network applications refute the idea that electronic communication is merely another replacement for memos, an alternative to phone or fax. Bulletin Board Systems, Internet newsgroups, and other "message bases" provide fora for group discussions of every imaginable topic; they allow participants to read the remarks of all other participants and then to append their own reactions to the "threads" of developing public commentary or, often, to respond privately to individuals.(26) participants can often...