PROTECTIONS FOR ELECTRONIC ORGANIZING

February, 2003

Whenever workers come up with a good idea for building solidarity, the bosses usually try to make it illegal. The development of electronic communications to strengthen the union is no different, especially when the workers are using computers at work to either send or receive union material. We have already considered some of the possibilities for getting out messages of solidarity through the workplace, using computers.

The big question is—can we get away with it?

After all, the computers and their electronic systems are “company property,” and the boss is supposed to be able to make all the rules, right? Many union contracts have unfortunately failed to take up this issue because union officers either get bluffed or intimidated by a boss who tells them that they cannot use “company property or premises” for anything involving the union, without the boss’ specific permission.

The electronic organizer, however, has an unusual ally: surprisingly The National Labor Relations Board (NLRB) in a series of decisions has consistently defended the right to use “company property” to create “electronic unionism.” More surprisingly, some heavy management lawyers, agree. (Si se puedes!)

It is essential to understand that the boss will once again (as always) try to block you from union activities on company property. Any union organizer can show, however, that the NLRB does protect workers’ rights in non-work areas during non-work time, and that a boss cannot make a rule directed solely against union activities.

How does this apply to electronic organizing? The NLRB has provided millions of pages over the years to two key words of union activity, both in the unionized and in the non-union workplace: solicitation and distribution. In an article in The Maryland Bar Journal, (January/February, 2002) NRLB Region 5 Attorney Al Palewicz, and management lawyer Douglas M. Topolski, diagram these terms in the electronic workplace. “Distribution” means the passing out of materials, like leaflets in pre-electronic times, to be “read and re-read at the employee’s convenience” while “solicitation” includes “forms of communications” that “expect a response”—like a discussion on working conditions or an authorization card in a new organizing campaign.

The NBLRB has consistently ruled that workers can solicit in work areas during work times, and that a boss cannot create an “overly broad” no-solicitation rule which only applies to union activities. Reduced to human-speak, the NLRB’s position is that if a worker can use a computer for any personal reason—chatting via e-mail or ordering personal goods on the internet—then this same equipment can be used for union activity. Topolski and Palewicz cite several important NLRB cases, which provide a more detailed example of NLRB policy. In E.I. Dupont & Company (1993), the NLRB stated clearly that the boss can not prohibit workers from using the company’s e-mail system to distribute union material. These two experts provide a whole history of NLRB cases to support their point.

In a current case which reflects the dramatically changing landscape of union activities, an NLRB Administrative Judge (ALJ) in November, 2002, overturned a representation election loss by 2,000 insurance agents and staff at Prudential Insurance Company of America because the bosses blocked the union, the Office and Professional Employees, from using the company’s computer network to distribute pro-union material. The campaign was remarkable is several ways: it was nation-wide—a glimpse at the future of stewards’ activities—and, while threatening union supporters over the use of the e-mail system, the company displayed pop-up anti-union messages (think “Good Morning. Have A Nice Day. Vote NO”), creating a kind of electronic parking lot where campaign “leaflets” were distributed. Although the OPEIU lost the original election by a 748-811 margin, the ALJ, supported the union’s objections, ruling that Prudential discriminated against union activities so severely that a new election is warranted.

Another intriguing case showed up in 2002 at the Labor Board, which supported UFCW Local 1625, in Orland, FL, over the display of a union screensaver on a nurse’s work computer. Her employer, St. Joseph’s Hospital, disciplined her for installing the union screensaver on her monitor but the Labor Board ruled that this discipline reflected anti-union discrimination and ordered the discipline be reversed.

In a third decision, the NLRB Region 5 prepared to issue a complaint in late 2002 against Northrup-Grumman Corp., who tried to discipline a union steward for sending e-mail messages from his home into the company’s e-mail system. The messages included both “union business”—reports on grievances, for example—and personal notes, like personal political endorsements and comments.

So don’t believe your supervisor when you’re told to get out of the system—or else!

Uh, excuse me but even the boss doesn’t believe this restriction! Writing in Bender’s Labor and Employment Bulletin (October, 2001), two management lawyers, Jeffrey L. Hirsche and Peter J. Moser are very clear about the rights of workers, under the NLRA, to use electronic communications for union activities. Explaining that the electronic “work area” is very broad, they caution bosses that “concerted activity is readily adaptable to electronic communications and that such communications will be protected if they fall within the parameters of concerted activity under a traditional analysis.” Mark Spognardi, another management lawyer, was quoted in a Reuters article in October, 2002, advising bosses that “if you permit employees to use e-mail for personal reasons, then you can’t clamp down on what these reasons are.”

So stewards—listen up! Be aware of your legal rights and then let your imaginations loose into the 21st century. The electronic workplace is here and open for union activities.

Bill Barry

Director of Labor Studies

Community College of BaltimoreCounty

The author thanks Doug Schmenner and Al Palewicz for their information.