Are You Prepared For Union Organizing – By E-mail?

Kegler Brown Labor + Employee Relations Newsletter

Many employers that do not have a unionized workforce don’t spend a lot of time thinking about possible union organization of their employees. But unions have markedly increased their organizational activities in recent years. Indeed, organized labor has introduced and pushed new federal legislation deviously called the “Employee Free Choice Act” that would greatly enhance union organizing and force employers to recognize and bargain with unions as the representative of their employees without a secret ballot election.

How do unions organize? Typically, they approach employees either by union organizers or by union sympathetic co-workers and give them information about the union, make outlandish promises about the benefits of being unionized and ask the employees to sign a petition or an authorization card evidencing their support for the union.

Over the years, the National Labor Relations Board (NLRB) has developed a set of rules that regulates this process: employers are allowed to prohibit the distribution of literature in work areas, they are allowed to deny access to their property to outside union organizers and they are also allowed to prohibit union solicitation among employees during working time. However, if an employer allows employees to engage in other non-work-related solicitations and communications (except perhaps for limited charitable purposes, such as the United Way), they cannot then prohibit union solicitations when they appear. In other words, the employer cannot discriminatorily limit its prohibition of solicitation to union activity.

We have seen numerous new HR challenges that stem from the ubiquitous presence of electronic communications. Probably the most pervasive form of electronic communication is e-mail (although IMs, blogs and other forms are rapidly increasing). Most employers, either by design or default, allow employees to use the company e-mail system for personal purposes. Employees routinely send personal messages to one another, publicize their garage and bake sales, solicit for various fundraising activities, etc. In addition, most employers do not monitor their employees’ use of the e-mail system.

Now what happens when a union enlists one of these employees, provides them with lots of organizing material and the employee e-mails the information, using the company’s e-mail system, to all other employees? With one keystroke, the solicitation is sent to every targeted company employee. And it can be done every day or every hour.

The NLRB has been considering these technical issues and seems poised to issue a number of rulings that will give some definition to the landscape. However, a federal court in Richmond Times Dispatch v. NLRB, 2007 U.S. App. Lexis 6129 (4th Cir. 2007), recently ruled that an employer could not prohibit its employees from using the company’s e-mail system for union organizing, when it did not enforce its rule prohibiting use of the system for personal reasons (in this case, employees routinely sent e-mails about personal news, social events and charitable fund-raising).

How can you avoid this nasty situation? There is a way, but undoubtedly it will not be popular with your employees. The answer is to have a rule that limits electronic communications and e-mails for only business purposes. Then the rule has to be enforced, which requires some monitoring and disciplinary action when the rule is violated. Under those circumstances, the employer could then legitimately, and non-discriminatorily, prohibit union solicitations.