Business Assignment

Union Organizing Using a Company’s E-Mail System

When union organizers start an organizing drive, there are certain restrictions on what they can do, particularly within the workplace.  Both employers and employees must comply with Section 7 of the National Labor Relations Act (NLRA).

Protected Concerted Activities

Under Section 7, employees have certain rights to communicate among themselves.  Section 7 states, “Employees shall have the right to self-organization, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

What about communication via e-mail?  Can union organizers use a company-operated e-mail system for organizing purposes?  Companies typically provide e-mail systems so that employees can communicate with outsiders and among themselves as part of their jobs.  Generally, company policies have prohibited the use of company owned and operated e-mail systems for other than job-related communications. Some union organizers have challenged this prohibition.

The NLRB’s Perspective Evolves

At first, the National Labor Relations Board (NLRB) allowed an employer’s written policy that prohibited the use of a company-provided e-mail system for non-job-related solicitations.  Then the NLRB reversed its position.  “[W]e decide today that employee use of e-mail for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems.”  The NLRB claimed that its earlier decision had failed to adequately protect “employees’ rights under the NLRA.”  The board also stated that it had a responsibility “to adapt the Act to the changing patterns of industrial life.”

The rules are clear.  Once an organizing election is scheduled, a company must turn over all telephone numbers and home and e-mail addresses of the company’s employees to union organizers within two days.  The organizers can then communicate with employees via the company’s e-mail system.

Question Presented

Employees meeting around the water cooler or coffee machine have always had the right to discuss work-related matters.  Is an employer-provided e-mail system or social media outlet simply a digital water cooler?  Why or why not?