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HR Magazine, January 2001: Cyber Speech Cops
 

By John E. Lyncheski and Leslie D. Heller  1/1/2001
HR Magazine, 
July 2000 Vol. 46, No. 1

Who decides what types of messages can be sent on your company computer system? In some cases, it's the NLRB.

Most employers assume they have complete authority to ban all non-business e-mail messages and to discipline employees for sending e-mail messages management considers inappropriate. Essentially, they see themselves as cyber speech cops who have the right to regulate what is transmitted over the systems they purchase and install.

Intuitively, this makes sense: You bought it, you should be able to control it.

Legally, however, things aren’t quite so clear. In fact, they can be downright murky. That’s because employees and labor unions have been turning to the National Labor Relations Board (NLRB) to limit employers’ control over their e-mail systems.

The long-standing mission of the NLRB has been to protect the rights of employees to communicate freely with one another about wages, hours and other terms and conditions of employment. However, the rules of the NLRB are not yet “technologically” up-to-date, and the agency is only beginning to tackle the issues arising in today’s computerized workplaces. In fact, the NLRB General Counsel recently directed all NLRB regional offices to send all e-mail and internet usage cases to Washington for review and initial action.

Here is a look at how the NLRB views employees’ electronic communication.

E-mail as Protected Concerted Activity

The National Labor Relations Act (NLRA), which is administered by the NLRB, protects not only union activity but also “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Thus, the NLRA protects the rights of employees to engage in group actions to influence working conditions—even if those actions are not specifically union- oriented.

For example, when employees act collectively to protest an employer’s overtime practices, they engage in protected concerted activity. In some cases, the actions of a single employee—who acts on the behalf of others—may be protected by the NLRA.

In one case, the NLRB held that e-mail communication may qualify as “protected concerted activity” under the NLRA. In Timekeeping Systems, Inc., 323 NLRB 244 (1997), the NLRB reversed the discharge of an Ohio computer programmer who criticized a new company vacation policy via e-mail. The NLRB concluded that because the employee’s e-mail message primarily sought the assistance of other employees in getting the old vacation policy reinstated, it qualified as a form of concerted activity.

The NLRB agreed that the tenor of the employee’s message was derisive, but it did not feel the message was offensive enough to lose the protection of the NLRA.

How offensive must a message be to lose the law’s protection? There is no single bright line test. However, in general, communications will be protected unless they are so violent or of such a serious character as to render the employee unfit for further service. Generally, an employee forfeits protection of the NLRA only when his behavior is truly insubordinate or disruptive to the work process.

An example of an unacceptably disruptive message can be seen in Washington Adventist Hospital, 291 NLRB 95 (1988). In that case, a Maryland pharmacist was fired for sending a system-wide computer message to hospital co-workers to protest impending layoffs.

The NLRB ruled the message was not protected because it interrupted more than 100 computer users at a peak time in the hospital, thereby creating a potential hazard and disrupting patient care. The NLRB viewed the pharmacist’s actions as an unauthorized takeover of the hospital’s communications system, which disrupted operations and interfered with the work of hospital employees.

Potentially Overbroad  E-mail Policies

The NLRB has indicated in advisory memos that, in some workplaces, a policy banning all non-business and/or personal use of e-mail may unreasonably impede self-organization, which is a violation of the NLRA.

In one case, the NLRB General Counsel’s office determined an employer could not ban all non-business use of e-mail—including employees’ messages relating to group action to influence working conditions, which are otherwise protected by federal labor law. The employees in the case used the company e-mail system to distribute union literature and notices.

The General Counsel’s office found that the employees communicated with one another and with management primarily by e-mail; further, the employees performed a significant amount of their work on the employer’s computer system. Therefore, the General Counsel’s office determined that the computer network became the employees’ “work area.”

This is important because prohibitions of employee solicitations during non-working times are presumed unlawful—even if they take place in work areas. In this case, the General Counsel’s office concluded that the ban on personal e-mail—the sole method for communicating through the computerized work area—effectively banned protected solicitations and was unlawful.

By contrast, in another case, the NLRB General Counsel’s office upheld an employer’s rule limiting employee use of e-mail to company business. The reason: The employees involved performed manual production and distribution work and generally had no access to e-mail or computers. Because those employees did not use e-mail or computers as part of their regular work, a “computer work area” did not exist for them. Thus, the General Counsel’s office found that the employer’s ban was not an overbroad restriction of work area use.

Effects of the Opinions

While advisory memos from the General Counsel are not binding, they do offer guidance on the type of e-mail policies and policy enforcement that will withstand NLRB scrutiny. These opinions indicate that the type of e-mail policy that will be acceptable will depend on the type of workplace and employees involved. Generally, the more e-mail communication is used in the workplace, the less restrictive an e-mail policy can be in terms of employee communication that might constitute protected concerted activity.

Note that this could become increasingly important as more employees participate in telecommuting programs. For telecommuters, e-mail might be the only readily available way for communicating about terms and conditions of employment.

Further, while this might apply most directly to white-collar employees today, it is becoming more common to find terminals with e-mail capability in blue-collar work areas as well.

Moreover, employers that allow employees to use e-mail for extracurricular activities—such as social announcements or sales of goods—but that shut out labor unions or concerted communications could face claims of unfair labor practices based on discriminatory enforcement.

In this regard, the NLRB likely will treat e-mails the same way it treats bulletin boards. While an employer has the right to restrict the use of company bulletin boards, it may not exercise that right discriminatorily so as to restrict postings of union materials. Similarly, an employer could ban the personal use of its computers and e-mail system. However, if the employer permits e-mails of a personal nature, it cannot exclude the union as a topic of discussion.

For example, in E.I. du Pont de Nemours & Company, 311 NLRB 893 (1993), the NLRB ruled that the company violated the NLRA when it allowed workers to use the e-mail system to distribute personal messages but prohibited them from using it to distribute union literature and notices.

We are not suggesting that employers rush to revoke e-mail policies limiting or banning personal or non-business use, but it must be understood that such policies now carry increased risk if challenged before the NLRB. Employers should seek appropriate counsel on the viability of their policies in this regard and continue to monitor NLRB decisions on the issue.

Additionally, as with any other policy limiting employee solicitation and speech, it behooves employers to be diligent in ensuring that the policy is non-discriminatorily enforced regarding protected concerted activity and activities on behalf of a union.

The Future

Significantly, the NLRB General Counsel’s office has stated that it intends to treat e-mails like phone conversations, rather than hard copy mail. With both phone conversations and e-mail, participants can carry on virtually instantaneous conversations. The General Counsel’s office views this ability to exchange ideas and discuss collective action as a form of protected speech important to the preservation of employee rights.

There remain, however, a number of issues that the NLRB has yet to directly address.

One example is the right of a union to solicit directly through an employer’s e-mail system. As a result, the circumstances under which the NLRB will allow an employer’s e-mail system to be used to solicit support for a union remains unclear. This is likely to be an important issue: E-mail is an appealing communications tool for outside solicitors, such as labor unions, because it allows them to distribute information instantaneously to a large group of employees.

Other issues the NLRB has yet to address include:

  • Employees’ use of employer’s electronic bulletin boards.

  • Non-employee access to e-mail addresses maintained by employers.

  • Rules limiting e-mail use to address particular problems, such as prohibiting “mass” distribution of non-business e-mail messages, requiring that non-business e-mail messages include “non-business” in the title of the message, or requiring that non-business e-mail messages be sent by lowest priority to limit their interference with business-related e-mail.

Also yet to be specifically addressed by the NLRB are an employer’s right to monitor employee e-mail messages when they are sent or when they are stored in a personal folder. It is possible that unilateral monitoring will be viewed as unlawful surveillance under the NLRA.

There also is a paucity of cases dealing with the obligation of unionized businesses to bargain over issues and policies relating to restrictions on e-mail and Internet communications. Absent a waiver, the NLRB likely will consider these policies as dealing with “terms and conditions” of employment, which would render them subject to a duty to bargain with an incumbent union.

Historically, the NLRB has found implementation of analogous policies to be a mandatory subject of bargaining, absent a clear and express negotiated waiver of the employer’s obligations. Traditionally, the NLRB interprets employers’ obligations to bargain very broadly.

Staying Prepared

Employers should review, develop and implement policies that address e-mail and other cyberspace issues that might arise under the NLRA. Employers should seek counsel that is well-versed on current NLRB developments. Avoiding potential problems can be a matter of understanding risks, creating proactive policies in anticipation of challenges and communicating changes to everyone involved.

At a minimum, employers should act to limit employees’ expectations of privacy when using the employer’s system. Employers should reserve the right to monitor e-mail usage and messages. Requiring the use of confidential employer-controlled passwords—and limiting access through use of those passwords—should be a high priority. Policies addressing bans and limits on solicitation and distribution by or on behalf of employees must be dusted off.

These steps will position employers to maximize the benefits of e-mail systems while minimizing the risks of employee disputes, litigation and liability.

Be proactive and don’t leave fate in the hands of the NLRB during a sensitive dispute. Don’t fall behind in the race into cyberspace when it comes to organized labor, protected concerted activity and related legal issues. And, by all means, continue to follow developments at the NLRB as they occur in this emerging area of the law.

John E. Lyncheski is a director and Leslie D. Heller an associate in the Labor & Employment Group at Cohen & Grigsby P.C., a full-service national law firm headquartered in Pittsburgh. They can be reached at jlyncheski@cohenlaw.com and lheller@cohenlaw.com

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