EMPLOYEES’ RIGHT TO ENGAGE IN CONCERTED ACTIVITY APPLIES TO EMAIL.
Section 7 of the National Labor Relations Act (“the Act”) provides in part:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…
Rights under section 7 apply to both union and nonunion workers.
Employers often fail to appreciate the impact of the Act on employee relations. For example, it is generally seen as a violation of the act to have a policy that prohibits employees from discussing their pay or compensation with co-workers.
The National Labor Relations Board (“NLRB”) is responsible for enforcement of the Act. They have issued a few rulings on issued that have taken the Act into the digital age. In one case, the NLRB held that an employer’s policy of allowing employees personal use of the email system, but not allowing the employees to use the system to distribute union materials violated the act. Essentially, the NLRB held that if an employer allows employees to send or receive person email, they must also allow union email. In another case, the NLRB held that an employee who utilized the employer’s internal email system to communicate with co-workers and criticize the employer’s new vacation policy was engaged in protected activity. The NLRB held that it was a violation of the act to terminate the employee for “concerted activity.
In addition to the NLRB, the General Counsel’s Office of the NLRB also issues opinion letters. The General Counsel, appointed by the President to a 4 year term with Senate consent, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of unfair labor practice and representation cases.
In one opinion memorandum, the General Counsel’s Office maintained that an employer’s policy prohibiting personal use of the company e-mail system was overbroad and illegal on its face because it restricted solicitations even on non-work time. The General Counsel considered email as a substitute for oral communications. The General Counsel’s Office also opined that a policy prohibiting non-business use of email, but allowing some personal use was unlawful if it did not allow for discussion of union issues. In another memorandum, the General Counsel’s Office maintained that a policy that prohibited use of the employer’s computer system for “inappropriate or offensive communications-offensive language, derogatory remarks-or any material that reflects negatively on the Company” is unlawful. In a fourth memorandum, the General Counsel’s Office maintained that a policy that prohibited “chain” or “bulk” email was unlawfully ambiguous since it did not define these terms.
However, the General Counsel’s Office has also issued a memorandum opinion that an employer can discipline an employee for creating and printing a pro-union computer file on company property on company equipment during a time the employee should have been working. In addition, the General Counsel’s Office has held that an employee can be disciplined for posting an internal company memorandum on the union’s World Wide Web site.
In short, when drafting and enforcing an electronic communications policy, employers should also be aware of the applicability of the National Labor Relations Act. Employers should insure that employees are not disciplined for conduct that is protected by the Act.
By: Ryan D. Barack
Board Certified Labor and Employment Lawyer
Kwall, Showers & Barack, P.A.