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Union Solicitation Via Electronic Mail

December 31, 1999

Sharing information in the workplace by electronic means -- whether by e-mail, electronic bulletin boards, intranets or world wide websites -- is becoming ever more common. These modes of communication allow messages to reach a large audience with very little expense and at great speed. Recognizing that electronic communication is an efficient and effective means by which to capture the attention of employees, union organizers are increasingly relying on it to conduct the business of organizing the nation's workforce. Indeed, the past year has seen explosive growth in union communications of this kind, including e-mail solicitations by union organizers, internal electronic communications among employees seeking to organize, and even the appearance of union authorization cards available for downloading from union websites. Employers desiring to limit this activity must anticipate how rules under the National Labor Relations Act (the "Act") concerning employer restrictions on more traditional union solicitation activities will be applied to these new modes of communication.

Union's use of an employer's internet e-mail system

In general, in order to prevent a union from using the employer's e-mail system for organizing purposes, the employer must not permit the system to be used for solicitation by other non-employee organizations or individuals.

This rule is derived from traditional principles under the Act governing union access to employer property. Generally, an employer may prohibit non-employee union representatives from distributing union literature or otherwise soliciting employees on the employer's private property. Thus far, the courts have unanimously held that an employer's internet e-mail system is the employer's private property. Accordingly, just as an employer may prohibit a non-employee union organizer from distributing handbills in the employer's parking lot, an employer may prohibit non-employees from sending e-mails to employees at their work e-mail addresses.

Any rule barring solicitation or distribution on an employer's property, however, must not be drafted or enforced in a discriminatory manner. Thus, where an employer has permitted organizations other than unions to engage in solicitation and distribution on its property, the employer is vulnerable to an unfair labor practice charge if it denies the same privilege to unions. The National Labor Relations Board (the "Board") has been strict about this nondiscrimination requirement. For example, in one case, where an employer permitted access to its parking lot to a food truck, individuals providing transportation to employees, and a former employee inquiring about softball games, the Board ruled that the employer could not lawfully deny access to the parking lot to a union representative. Knogo Corporation, 262 NLRB 1346 (1982). Similarly, if an employer permits employees to receive e-mail from outside organizations for non-business related purposes -- and nearly all employers do -- the employer cannot lawfully prohibit union organizers from sending e-mail messages to employees.

Employees' use of the employer's e-mail systems, electronic bulletin boards or intranets

In addition to barring non-employees from its property, an employer may also promulgate rules prohibiting employees from using its property (such as bulletin boards) for non-business related purposes. However, the non-discrimination requirement discussed above relating to non-employee access to employer property is equally applicable to solicitation by employees of coworkers. Accordingly, an employer may maintain a policy restricting employees' use of the employer's e-mail system, electronic bulletin boards, and/or intranets to business-related purpose only, provided that the employer enforces the policy in a non-discriminatory manner. That is, once the employer permits employees to send any non-business related e-mail -- again, a practice most employers allow -- it must permit employees to send union-related e-mail as well.

For example, in one of the Board's few decisions to date concerning e-mail, the Board ruled that the employer must allow employees to circulate e-mail messages concerning the union because the employer had permitted the e-mail system to be used by employees to distribute "a wide variety of material that has little if any relevance to the Company's business." E.I. DuPont De Nemours & Company, 311 NLRB 893 (1993). In another case, a regional office of the Board recently issued a complaint alleging that the employer had discriminatorily applied its business-use only e-mail policy by disciplining an employee for sending e-mails related to union organizing, when it had not previously disciplined employees for sending personal messages to one another by e-mail. The case was ultimately settled, so no Board decision was issued. However, under the terms of the settlement agreement, employees are permitted to use the employer's e-mail system on a limited basis for organizational purposes.

Employers should be aware that even very limited personal use can compromise a business-use only policy. In a case involving employees' use of the telephone, for example, the Board held that although an employer can "unquestionably bar its telephones to any personal use by employees . . . once it grants the employees the privilege of occasional personal use of the telephone during worktime, including the privilege of calling other employees at work, it would appear that it could not lawfully exclude the union as a subject of discussion." Union Carbide Corporation - Nuclear Division, 259 NLRB 974 (1981). In addition, even personal announcements which could not strictly speaking be characterized as "solicitations," such as postcards from employees, wedding or birth announcements, birthday greetings, etc., will compromise a business-use only limitation if such announcements are tolerated while union-related announcements are not. For example, the Board has ruled that where an employer maintains a bulletin board which is ostensibly for business use only, but permits employees to post items of a personal nature, such as wedding and birth announcements, postcards, or letters from employees, the employer has compromised its business-use only policy and may not enforce such a policy against union postings. K-Mart Corp., 255 NRLB 822 (1981).

One means by which an employer might prevent employees from sending union-related e-mails (short of an outright ban on all personal use of e-mail) is by establishing a lawful no-solicitation/no-distribution policy. Under Board case law applicable to traditional forms of solicitation, an employer may lawfully prohibit employees from engaging in solicitation during working time, and prohibit employees from engaging in distribution of literature both during working time and at any time in working areas. Accordingly, an employer may adopt a policy prohibiting employees from sending e-mails concerning union activities when that employee is on "working time." (Working time does not include lunch periods or breaks). Of course, the same non-discrimination rule applies; if the employer permits employees to send other non-business related e-mails during working time, its policy would be compromised, and an attempt to rely on the policy to prohibit union-related solicitation would be subject to successful challenge.

There has been some discussion concerning whether e-mail is more akin to a solicitation (which generally involves oral communication) or a distribution (generally handing out literature). The inquiry is relevant because the Board permits an employer to implement more restrictive rules concerning distribution than it may implement for solicitation. (As noted above, an employer may prohibit solicitation during working time but may prohibit distribution activities in work areas at any time). Until there is further development of case law applying these traditional principles to new forms of communication, employers would be wise to take the more narrow view that e-mail is a form of solicitation, rather than distribution, and should prohibit employees only from sending non-business related e-mails during working time. As stressed above, however, the rule must be enforced even-handedly.

Tips for employers

As the law currently stands, in order to prohibit union solicitation on its electronic systems, employers must prohibit all non-business related solicitation or other use of those systems, including incidental personal use. As difficult as it may seem, employers seeking to prevent union organizers from co-opting corporate e-mail systems for organizing purposes should promulgate a policy limiting the use of e-mail in the workplace to business use only, and the employer must respond in a consistent manner to all known violations of the policy.

To ensure that such a policy is enforced in a uniform manner on electronic bulletin boards and intranets, an employer should periodically monitor those forums to ensure that there are no postings which violate the policy. With respect to e-mail messages, however, monitoring is a far more difficult task, and employers must take care not to violate any state statute (certain states, including Connecticut, regulate an employer's ability to monitor employee e-mail communications). However, the obligation to uniformly enforce no-solicitation policies may require employers to do just that if they wish to prohibit union-related communication delivered via their corporate e-mail systems.

Finally, all employers should implement a rule prohibiting solicitation during working time, and employers should understand that unless they enforce that policy to prohibit employees from sending any non-business related e-mails during working time, any attempt to enforce the policy to prohibit employees from sending union-related e-mails during working time would be unlawful.