Using Company E-mail to Organize:
Employers Seek Legal Roadblocks

With unions increasingly using the Internet to strengthen their hand in organizing, it is not surprising that employers are seeking legal roadblocks to limit these efforts. Indeed, employees' use of company e-mail for union activities has created new questions and legal challenges for unions, employers, and workers alike.

The use of e-mail in organizing campaigns offers many advantages--especially the ability to quickly reach a large number of people. Under U.S. labor law, oral (or verbal) solicitation of employees is permissible during non-working hours both on and off the work site, but the distribution of printed union materials in the workplace can be prohibited at all times. This raises the question of how e-mail is defined in this context. Is e-mail considered oral or printed? If an employee can use company e-mail for writing to friends, can he or she also use the system to distribute union materials?

While it has not addressed the issue of organizing per se, on two separate occasions the National Labor Relations Board has ruled on cases involving whether an employer has the right to restrict an employee's use of company e-mail for activities protected under the National Labor Relations Act (NLRA).
In the first case, E.I. du Pont de Nemours and Co., 311 NLRB 893 (1993) the NLRB ruled that a company policy which allows employees to use the company e-mail system for personal use but not for the distribution of union literature and notices was discriminatory.

In another case, Timekeeping Systems Inc. v. Lawrence LeinWeber, 323 NLRB 30 (1997), the Board ruled in favor of an employee who was fired for "misconduct" after he criticized his employer's new vacation policy via the company e-mail system. The employeeÕs actions were deemed a "concerted activity" and as such were protected under Section 7of the National Labor Relations Act.

In addition, a 1998 advice case by the NLRB General Counsel ruled that an employer's e-mail policy prohibiting all non-business use of e-mail, including employees' messages protected by the NLRA, was too broad and unlawful. The Counsel argued that some of the e-mail could be classified as solicitation, and was thereby protected activity under NLRA, Section 7.

While so far the NLRB has not directly addressed the issue of a union's right to organize through company e-mail, the related rulings are encouraging, in part because they have shown that an employer's attempt to exclusively restrict an employee's use of company e-mail for union-related activities is a violation of the employee's rights under the NLRA.