Barbara Camens and Marissa Jacobson
TNG-CWA Legal Counsel
The same computer technology that helps make businesses more efficient is useful to unions, too-much to some employers’ dismay. So it should come as no surprise that as TNG-CWA locals and their members increasingly rely on company e-mail to communicate about workplace issues, those same employers are trying to prohibit such use, often by unilaterally imposing new computer-use policies. Many such efforts, however, are illegal and should be challenged by TNG locals.
The Washington-Baltimore Newspaper Guild, for example, recently won just such a dispute with the Bureau of National Affairs, which had ordered the unit chair to stop using its e-mail system for distributing bargaining bulletins. Similarly, management at the Knoxville News-Sentinel tried to impose a ban on all union communications at the workplace other than postings on newsroom bulletin boards. When the Guild protested that the policy was illegal, the employer backed down. Other Guild locals have related comparable stories.
Unilateral employer bans on e-mail usually run afoul of Section 7 of the National Labor Relations Act, which assures employees of the right to communicate about the workplace, union representation and terms and conditions of employment. The right to communicate on company property must be balanced against the right of employers to maintain discipline and productivity and to require that work be done during paid working time. But Section 7 also protects employees’ rights to communicate orally about union matters (to “solicit”) during paid, non-working time, and to circulate written union material (to “distribute”) during paid non-working time in non-working areas.
Employers cannot legally prohibit employees from communicating on “company time” because the NLRB has found such pronouncements to be vague and overbroad-employees might mistakenly think the prohibition includes breaks, lunch or other periods when they are not actively working. Moreover, past practice may define “non-working time” more broadly than the minimum standards set by the NLRB. For example, if Guild employees generally are permitted to deal with personal matters after meeting an advertising or editorial deadline, those employees should be permitted to communicate on union matters during those “non-working moments.”
Furthermore, while employers may ban union discussions during working hours, even that discretion can be overturned if a union can show that the prohibition was adopted or applied in a discriminatory or anti-union manner.
The Knoxville News-Sentinel’s proposed ban, for example, appeared to be a knee-jerk reaction to union activity and therefore was challenged successfully as discriminatory. Likewise, one of the challenges to BNA’s policy took note of the company’s use of its e-mail system to present its own version of how contract negotiations were progressing-an approach that obviously discriminated against the union.
E-mail gets additional protection from employer interference because it more closely resembles speech than text. That position, first staked out by the NLRB general counsel in a 1998 legal memorandum, was echoed more recently by the board’s current general counsel in a report titled “Project 2000.” His analysis, quoting from a Yale Law Journal article, noted that even “where an initial (e-mail) message is neither informal nor personalized, it is still not merely equivalent to a flyer because e-mail allows the reader to talk back. This ability to exchange ideas and discuss what action to take collectively is the key to the effective preservation of labor rights and the equalization of bargaining power.”
Assuming that Guild employees use computers and e-mail with sufficient frequency to characterize the employer’s computer network and e-mail system as a “work area” — an easy conclusion for the majority of employees within the Guild’s jurisdiction-e-mail use during non-working time for union-related purposes is, in the Guild’s view, a protected activity. A Guild employer cannot lawfully prohibit the use of e-mail for all non-business purposes because that would implicitly ban the use of e-mail for union activity during non-working time. Nor may the employer prohibit e-mails pertaining to union matters while allowing employees to use e-mail for personal or other non-business matters.
It’s worth remembering, however, that the board’s general counsel only prosecutes complaints — it is up to the politically-appointed NLRB to adjudicate the cases. Aside from examining the fundamental issue of employer bans on e-mail use, the board has to determine what constitutes “working time” for employees who work on computers at flexible times and places; whether the computer network is a “work area” if the system is used infrequently; and what reasonable limitations may be placed on e-mail use to preserve productivity.
In addition to employers interfering with Section 7 rights, there looms the issue of whether a union may properly waive such rights in exchange for other concessions by the employer or for other reasons. But here, too, the NLRB and the courts have held that a union may not contractually waive employees’ rights without compelling business reasons to justify the restriction.
For example, the court upheld a contractual ban on discussing union matters on working time in patient areas at a health center. The rule, intended to restore labor peace and avoid disruption to patient care, had been accepted by labor and management following a bitter, divisive strike. Its focus on union affairs, the court concluded, was not discriminatory because no other subject had the same disruptive effect. Moreover, the employees could discuss union matters during non-working time on the employer premises so long as they did so outside of patient areas.
But barring such exceptional circumstances, unions are not allowed to bargain away their members’ communication rights. As summarized by the Supreme Court in a case known as NLRB v. Magnavox, in which it invalidated a collectively-bargained, blanket no-distribution rule, “The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees.”
The court further noted that while a union may waive other protected rights-such as the right to strike for economic reasons-in exchange for an employer’s concessions, such an agreement “rests on the premise of fair representation and presupposes that the selection of the bargaining representative remains free.” Thus, the court distinguished between the lawful waiver of “economic rights” (including wages and employment benefits) and the improper waiver of communication rights regarding employees’ choice of a bargaining representative and their evaluation of that representative.
Subsequent decisions have expanded the non-waivable communication rights to include the right “to engage in activities by which employees may seek to change their bargaining representative, to opt for no bargaining representative or to seek to retain the present one.” These decisions have recognized the employees’ right to discuss candidates for union office as well as to engage in constant re-evaluation of their designated collective bargaining representative. For example, the union may not waive the employees’ right to distribute — and an employee may not be punished for distributing, during non-work time and in non-work areas-literature pertaining to:
- the candidacy of individuals for union offices;
- the employees’ concern over the potential for layoffs by the employer and disagreement with the union’s efforts to avert the layoffs;
- a critique of negotiations for a new contract as well as the terms of the contract;
- a dues increase by the union.
Subsequent cases have extended the reasoning in Magnavox to ensure that employees may discuss or solicit co-workers’ support on matters affecting the terms and conditions of their employment, regardless of whether the union supports their position. Thus, employees must remain free to discuss ongoing contract negotiations, wages and other employment benefits, issues affecting their workplace, management supervision, and their general support for collective bargaining.
On the other hand, while a union may not waive employees’ communication rights, the NLRB has consistently held that a union may waive the right to distribute its own institutional literature. Thus, a union may contractually limit the right to distribute information at the workplace about union meetings, social affairs, union elections, union membership and dues payments.
What is unclear is whether a union may waive its right — as opposed to the individual employees’ right — to solicit employees or distribute material on matters involving their Section 7 rights. TNG-CWA believes a union must be permitted to communicate and distribute material to unit members about their terms and conditions of employment, in order for those members to critically evaluate the effectiveness of their bargaining representative. Union members could not, for example, intelligently evaluate their union’s position in collective bargaining without access to basic information from the union regarding such bargaining. The Guild therefore believe that employees’ unwaivable right to communicate on collective bargaining matters is dependent on a similarly unwaivable right on the part of the union to communicate on these issues. Unfortunately, there is no case which directly decides this issue.
Finally, there remains a question of whether a union may be forced to bargain about a waiver of e-mail communication rights, even in the face of an employer’s argument of “special circumstances.” The NLRB has not yet decided whether e-mail and computer use policies are a mandatory subject of bargaining. There are strong arguments for such a holding, on the theory that e-mail communications may be likened, for example, to an employee bulletin board. One might also argue, however, that because any restrictive communications policy would involve the waiver of employees’ fundamental statutory rights, such a waiver must be considered a permissive subject of bargaining. On this theory, an employer could not take the issue to impasse and could not implement the communications restriction without the union’s consent.