U.S. businesses, unions await key ruling

Unions could gain access to internal communications systems

We all, at one point or another, have been or will be guilty of it — wasting time at work.

But reading recipes to plan a dinner menu are blemishes every employer, within reason, will pardon. Organizing employees for a union drive or using a company’s internal system in an effort to raise wages, however, falls outside the purview of policies at many organizations.

In the United States, the National Labor Relations Board (NLRB) is considering whether employers should allow employees to use internal communications systems (think email, instant messaging) to discuss employment conditions. It is a move that could give unions a powerful bargaining and organizing device.

The case — filed by the Communications Workers of America (CWA) against California-based Purple Communications, an
interpreter service for deaf and hard of hearing persons — would reverse a 2007 ruling that determined employees do not have the statutory right to discuss such matters using the employer's email.

While the union has argued the 2007 decision is outdated and technology has since advanced to make email a primary medium for organizing, businesses say providing access would infringe upon their property rights and impede productivity.

"If (the NLRB) reverses the (2007) decision, it would give union activists across the country an incredibly powerful tool to talk about improving working conditions," the CWA said in a statement.

The CWA filed an unfair labour practice complaint with the NLRB relating to failed representation and certification attempts at two of Purple Communications' locations in California. In its application, the union alleged the company violated regulations by prohibiting employees from using the email system for non-business purposes.

In October of 2013, a judge dismissed workers’ claims that Purple Communications’ email policy unlawfully restricted their right to discuss their jobs and stuck by a 2007 decision for employees at the Register Guard. In that ruling, the labour board determined newsroom staffers at the Oregon-based publication had no statutory right to use their employer’s email system for union purposes.

"Now the NLRB is saying, ‘Hold on, let’s think about it some more,’" the union said.

Additionally, the labour relations board asked interested parties to weigh in on other aspects of the case relating to electronic communications.

The first is whether an employee’s personal electronic devices (such as cellphones), social media accounts and email accounts affect the proper balance to be struck between the employer’s rights and the employee’s rights to communicate about work-related matters. Secondly, the board seeks to identify any other technological issues concerning email or other electronic communications systems that the board should consider in answering those questions, including electronic and communicative technology changes since the Register Guard decision.

According to Joel Barras, a partner at Reed Smith, a law firm headquartered in Philadelphia, Penn., the NLRB got it just right in its 2007 Register Guard decision.

"The happy medium is the Register Guard decision, it drew the line pretty well. It would be particularly troubling if employees would gain access to email systems or other communications systems to the extent that unions are asking," Barras said, adding that this could be a two-way street.

"If employers put together the time and effort to put together the system, unions shouldn’t be allowed to piggy back on it. When unions put together their websites and their social media pages, employers don’t get access to those — and unions are very good at social media, by the way."

As for organizing efforts, Barras said access to email could be another avenue for organizing or discussing union matters — but the consequences for employers go beyond the labour movement. What it comes down to are the principles of property rights, and a union’s effort could clog up the system for unintended purposes.

"The unions will take advantage of any avenue they have to try and organize employees, and this would definitely be one of them. This is an easy way for unions to get access to all employees at once. But I see this more as a fundamental property issue," he explained. "It is the employer’s system, they pay for it. They have legitimate reasons why they don’t want these systems clogged up. This could invite a flood of emails, attachments, links to websites that introduce viruses to the system, that make employees spend work time reading non-work-related emails when they should be working."

With that in mind, Purple Communications cannot discriminate against the union. For instance, the company cannot permit all activity on its systems save for any union-related business. Instead, the company’s electronic communications policy prohibits employees from using the company’s email system for non-business reasons.

There is a line that needs to be drawn, Barras said.

"You can come up with a category of uses that can be used. Employees talking about political or charitable activities — those are permissible. But commercial uses — they are not," he said, adding that union-led discussions regarding employment conditions should only fall under the umbrella of work to a certain degree.

"If it is to advance your job duties, if it is to do your job, then it absolutely is. If it is an attempt to improve your wages and hours or to unionize, then that is about your job, but it is not advancing your job duties."

Barras said a decision is expected before Dec. 15.

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