TECHNOLOGY ISSUES CONFRONTING UNIONS AND EMPLOYEES IN THE WORKPLACE

American Bar Association Section of Labor and Employment Law San Francisco, California August 9-12, 2003 TECHNOLOGY ISSUES CONFRONTING UNIONS AND EMPLOYEES IN THE WORKPLACE Gwynne A. Wilcox, Esq. Levy, Ratner & Behroozi, P.C. 80 Eighth Avenue, Floor 8 New York, New York 10011 (212) 627-8100 gwilcox@lrbpc.com i

INTRODUCTION The continuous wave of new technological developments has presented and continues to present new issues in the workplace. For unions and employees, technology provides new opportunities to communicate, but also presents a whole host of new issues as technology has changed the workplace. This outline examines some of the technology issues confronting unions and employees in the new workplace that have been addressed by the National Labor Relations Board ( NLRB or Board ) via actual Board decisions, recommended orders of Administrative Law Judges ( ALJ ) and General Counsel Advice Memoranda. 1 While there are actually few Board decisions, the regional offices and the Division of Advice have had many opportunities to consider these issues. In the next months, the Board will hopefully issue decisions reviewing the many recommended Orders of ALJs regarding these issues. I. COMMUNICATIONS WITH EMPLOYEES A. IMPORTANCE OF E-MAIL COMMUNICATIONS IN ORGANIZING CAMPAIGNS 1. Prudential Insurance Co., 2002 NLRB LEXIS 551 (2002). The NLRB has not ruled on this case. However, the ALJ recommended that the NLRB set aside a mail ballot election since the employer s objectionable conduct affected the outcome of the election. The employees were at a disadvantage by not having the opportunity to utilize the employer s e-mail system to communicate about the organizing campaign, whereas, the employer s supervisors and managers had full access to communicate the employer s anti-union position. The ALJ underscored the Act s purpose of having a procedure permitting employees to decide whether they wish to have union representation. In this instance, where the employees were spread out across the country, located in company offices, their homes and offices they rent and did not have normal day-to-day physical contact, the employer s policy interfered with their Section 7 rights. The employer communicated either in person or via e-mail with all employees about the company s Vote No position and no employee could escape the employer s e-mail communication because if an employee logged onto the computer network, the company s campaign materials automatically appeared. 2 Lockheed Martin Skunk Works, 331 NLRB 852 (2000). The union s failure to fully avail itself of the company s e-mail system put it at a disadvantage during a decertification election, where the election results were close. However, the Board, in a 2 to 1 decision, did not set aside the 1 For further discussion, see Gwynne A. Wilcox, Section 7 Rights of Employees and Union Access to Employees: Cyber Organizing (The Labor Lawyer, Fall 2000). 1

election. See, Member Liebman s dissent underscoring the impact of e-mail communications. See, E.I. du Pont de Nemours & Co., 311 NLRB 893 (1993) (The ALJ recognized that the discriminatory application of the e-mail system diminished the union s role and undermined its support.) B. EMPLOYEE-TO-EMPLOYEE E-MAIL COMMUNICATIONS IN ORGANIZING CAMPAIGNS 1. Gallup, Inc., 334 NLRB 366 (2001). The NLRB held that the implementation of a nosolicitation policy including a ban of e-mail use for nonbusiness reasons was a Section 8(a)(1) violation because it was implemented as a result of the union organizing campaign. 2. Prudential Insurance Co., supra. The ALJ recommended a finding that the employer s institution and enforcement of an overly broad non-solicitation/communications rule prohibiting employees from using the employer s e-mail system for nonbusiness related purposes, including discussing the union, the petition and/or the upcoming election, after the union filed the representation petition restricted the employees Section 7 rights. (As noted above, these employees were spread out across the country, located in company offices, their homes and offices they rent and did not have normal day-to-day physical contact.) Unlike restrictions on company telephone usage, e-mails can be sent or read at any time (during or outside work time) they do not hinder an employee from receiving other work-related communications at the same time, and they can be responded to when not occupied by work. The ALJ also found that since many of these employees were using their own computers at other than company locations and during non-work time, there is little danger of litter or interference with their work. See Republic Aviation, infra and Stoddard-Quirk, infra. 3. NLRB Office of General Counsel Advice Memorandum (Ocean Spray Cranberries, Inc.), 2002 NLRB GCM LEXIS 20 (2002) The Division of Advice authorized the dismissal of the charge where an employer deactivated a common e-mail distribution address during an union organizing campaign. The employer had legitimate business reasons to do so-- to avoid viruses from outside sources, and had done so, prior to the campaign. Also, the union could still communicate with employees by sending e-mails to their individual work e-mail addresses or create a distribution list to have access the employees. Unlike Pratt & Whitney, infra, this was not a total ban on all nonbusiness mail. 4. NLRB Office of General Counsel Advice Memorandum (Pratt & Whitney), 1998 NLRB GCM LEXIS 40 (1998). The Division of Advice directed the issuance of a Section 8(a)(1) violation where there was a complete ban against the use of its e-mail system for non-business reasons. The employees utilized their computers for a substantial majority of their work time, thus, the Division of Advice deemed the computer network a work area. As such, the communications were analogous to solicitations, under Republic Aviation v. NLRB, 324 US 793 (1945), and could not be prohibited unless necessary to maintain production or discipline. In contrast, a distribution of literature, under Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962), for which non-work areas must be made 2

available, regardless of other available means of communication; See, NLRB Office of General Counsel Advice Memorandum (TU Electric), 1999 NLRB GCM LEXIS 19 (1999) (The e-mail system constituted a work area, even though the disciplined employee only spent one hour per day on the e- mail system, and similarly directed an 8(a)(1) complaint on the no-solicitation/no-distribution policy); NLRB Office of General Counsel Advice Memorandum (Sitel Corporation), 2000 NLRB GCM LEXIS 59 (2000) (The computer network was deemed to be a work area, where the employees operating a remote phone center for General Motors dealers have regular access to e-mail and Internet, therefore, an overall ban on non-business related communications was a violation of 8(a)(1)); NLRB Office of General Counsel Advice Memorandum (Jordano s Food Service), 2003 NLRB GCM LEXIS 6 (Jan.13, 2003) (The rule prohibiting the use of e-mail and computers was lawful because technologies did not constitute a work area, because the warehouse employees and drivers had limited access to e-mail or computers). 5. Contrast NLRB Office of General Counsel Advice Memorandum (IRIS-USA), 2000 NLRB GCM LEXIS 4 (2000) (Employee handbook s restrictions of all non-business use of e-mail, including messages otherwise protected by Section 7, were lawful and not overly broad under 8(a)(1), because employees performed manual and distribution work and lacked e-mail and computer access comparable to Pratt & Whitney.); NLRB Office of General Counsel Advice Memorandum (Encompass Services Corp.d/b/a SKC Electric), 2001 NLRB GCM LEXIS 1 (2001) (Pratt & Whitney analysis inapplicable to electricians at construction projects who do not use computers). 6. See, Timekeeping Systems, Inc., 323 NLRB 244 (1997), where the communication was protected, as opposed to Washington Adventist Hospital, 291 NLRB 95 (1998), where the conduct caused a substantial interference with the hospital s computer system, and was deemed unprotected. Also, see Sprint/United Management Co., 2002 NLRB LEXIS 485 (2002) (The ALJ recommended dismissal of a complaint where an e-mail was sent stating that anthrax was found in the employer s warehouse, because while the communication was deemed protected activity, some of the statements in the e-mail were known by the sender to be deliberately false, therefore the e-mail lost the protection of the Act). 7. The discriminatory application of e-mail communications is a well-established violation. See, E.I. du Pont, supra. Also, see Media General Operations, Inc. d/b/a Richmond Times-Dispatch, 2002 NLRB LEXIS 205 (2002) (The ALJ recommended dismissal of the allegation that the employer selectively prohibited the union from sending bulletins and other union information via the employer s e-mail system as untimely; and alternatively, recommended a violation where the employer routinely permitted the use of the employer s e-mail system for non-business related reasons, contrary to its written policy). C. UNION ACCESS TO EMPLOYEES IN AN ORGANIZING CAMPAIGN 1. In a traditional workplace, Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) and NLRB v. 3

Babcock & Wilcox, 351 U.S. 105 (1956) would apply. However, in a technological workplace, there is only one case that has addressed this issue. 2. Technology Service Solutions, 332 NLRB 1096 (2000), modified by 334 NLRB 116 (2001). The NLRB did not find an 8(a)(1) violation where the union lacked access to and was denied a list of names and addresses of the 236 customer service representatives in 8 states in the unit found to be appropriate, in a related representation case. The Board found that Lechmere did not apply where the union had reasonable means of communicating with these employees. See, Technology Services Solutions, 324 NLRB 298 (1997) and particularly, Chairman Gould s concurring opinion asserting that the lack of contact among the employees, also, precluded the union from having opportunities to communicate with the employees. 3 Requirement to Produce E-Mail Addresses: Under Excelsior Underwear, 156 NLRB 1236 (1966), an employer is required to turn over only the names and home addresses of employees in the unit within one week of an election agreement or a decision directing an election. As technology continues to expand our methods of communication, the Board will be faced with attempts to extend Excelsior, and must decide whether an employer would be required to turn over business and/or home e-mail addresses, based upon the work areas and accessibility of employees. D. E-MAIL COMMUNICATIONS IN A UNIONIZED SETTING 1. Guard Publishing Co. d/b/a The Register-Guard, 2002 NLRB LEXIS 70(2002). The ALJ was unwilling to find that a total ban against the use of the employer s computer for nonbusiness reasons where all of the employees have access to the e-mail system violated the Act, since the Board has not found that e-mail systems constituted a workplace. However, the ALJ was willing to apply the nodiscrimination analysis of E.I. dupont, supra. The ALJ found that the employer consistently and widely permitted the use of e-mail system for personal reasons, thus, the employer violated Section 8(a)(3) by issuing discipline to an employee who was also the union president for sending e-mails regarding union activities. Also, the ALJ rejected the employer s argument that sending e-mails to multiple recipients constituted a violation where this was a common method of transmission and there was no evidence that those transmissions adversely affected discipline or production. 2. NLRB Office of General Counsel Advice Memorandum (Associated Press), 2002 NLRB GCM LEXIS 26 (2002) The Division of Advice found that the Employer s communications policy was not deemed to violate Section 8(a)(1) because the restrictions on e-mail and Internet usage were reasonable and did not interfere with employees Section 7 rights, even though a complaint would issue on the employer s unilateral implementation of the policy without bargaining with the union, in violation of Section 8(a)(5). The policy is outlined in detail in the Advice memorandum. 3. See Pratt & Whitney, supra; TU Electric, supra. 4. In a different setting, unsolicited mass e-mail communications is not deemed to be trespass to 4

chattel. See, Intel Corporation v. Hamidi, 2003 Cal. LEXIS 4205 (Cal.Sup.Ct., June 23, 2003) (The California Supreme Court reversed the lower court and held that an e-mail communication that neither damages or impairs a computer system or its functioning does not constitute trespass and lifted an injunction against Hamidi, a former Intel engineer who had sent six e-mails to 35,000 Intel employees. The Court rejected Intel s arguments that the loss of productivity caused by employees reading and reacting to Hamidi s messages and the company s efforts to block the messages constituted an injury to the company s interest since the computers were not harmed in any way.) This case will likely open the door for unions to communicate with employees and employees to communicate with each other via the employer s e-mail system. E. UNION WEB SITES 1. Unions are utilizing web sites as effective tools in communications. See, e.g., Geworkersunited.org, a recently created website by 14 unions at General Electric, providing extensive information for its membership, such as, contracts and benefits; also, see, the website by a SEIU local- -hopkinswatch.org, which is an pro-active organizing tool with substantial information about John Hopkins Hospital and the Baltimore community. 2. Magna International, Inc., 2001 NLRB LEXIS 134 (March 9, 2001). The ALJ found that the employer violated 8(a)(1) where a supervisor made a point of telling an employee that he had seen her picture on the Internet [referring to the UAW website that had posted her picture the day before], thereby creating the impression of surveillance of her union activities. 3. An interesting case in a different context involved a secured website, critical of both his union and employer, that was created by an airline pilot on his personal computer. Konop v Hawaiian Airlines, 236 F.3d 1035 (9 th Cir. 2001); opinion withdrawn 262 F.3d 972 (9 th Cir. 2001), 302 F..3d 868 (9 th Cir. 2002). The pilot filed a lawsuit against the employer under the Railway Labor Act ( RLA ), that is analogous to the NLRA, and the Electronic Communications Privacy Act ( ECPA ). He alleged, inter alia, that the employer engaged in improper surveillance of his secured website through false pretenses and passed ill-acquired information to the union, unlawfully assisted the union, and threatened to file a lawsuit against the plaintiff for the comments on the website. F. COLLECTIVE BARGAINING 1. While there is no NLRB decision on the issue of whether bargaining over e-mail and Internet policy is mandatory, it is unlikely that its mandatory status will be subject to serious dispute. See, California Newspapers Partnership d/b/a Ang Newspapers, 2002 NLRB LEXIS 660 (2002) (The ALJ recommended a finding that the employer violated Section 8(a)(5) of the Act, by unilaterally implementing an e-mail rule without bargaining with the union); See NLRB GC Advice Memorandum, (Associated Press), supra. 2. See, NLRB Office of General Counsel Advice Memorandum (American Publishing 5

Company of Illinois, Inc. d/b/a Post-Tribune Publishing), 2000 NLRB GCM LEXIS 55 (2000). While the union was negotiating an agreement, the employer, with offices that were networked, prohibited any union business on company time, and on company equipment, such as, computers, e- mail, etc., but continued to permit other non-business communications by e-mail. The Division of Advice authorized the issuance of an 8(a)(1) complaint, since the policy was directed at Section 7 activity and it did not distinguish between nonworking and working time, and an 8(a)(5) complaint because the employer did not notify the union of its intention to change the policy and did not give the union the opportunity to bargain over the change. 3. See, NLRB Office of General Counsel Advice Memorandum (Bureau of National Affairs) (October 3, 2000) ( Employer ban of e-mail containing union s bargaining update was unlawful, since the communication would likely engender a response, similar to a solicitation, and it would be unlawful, if considered a distribution, because there were no other work areas for distribution.) 4. As workplaces become more technologically connected, unions will want to bargain over the implementation, and use (business and non-business, including union business) of e-mail communications and Internet usage, especially, to address claims regarding unlawful use of company property. See, NLRB Office of General Counsel Advice Memorandum (National TechTeam), 2000 GCM LEXIS 30 (2000). (Discipline was lawful for improper use of the company s computer on working time.) Both practical and expansive employee use and union access to the workers over the system will be sought. G. E-MAIL/INTERNET POLICIES 1. These policies should permit reasonable nonbusiness use that does not interfere with the business of the employer or violate another employer policy, such as, sexual harassment. 2. The policies should not be created and/or enforced to discourage union activity. 3. The policies should not be enforced in a discriminatory manner. 4. Reasonable restrictions for purely legitimate business purposes would be permissible, such as, mass mailings, massive attachments or other computer-related issues that would unduly burden the system. 5. The policies have to be created taking into consideration the extent of e-mail use by the employees during their work day. 6