Seebach: Computer Age poses tricky questions about unionizing

Published January 20, 2007 at midnight

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Will the Internet kill the National Labor Relations Act? That's the intriguing question raised by Jeffrey Hirsch, who teaches at the University of Tennessee College of Law in Knoxville. His thesis, briefly, is that the use of e-mail as a tool of union organizing will strain the already creaky procedures of the National Labor Relations Board to the point where unions might increasingly bypass it entirely. And without union support, it will be vulnerable to pressure from opponents who would prefer to do away with it entirely, but would probably settle for slowly reducing its budget and its influence.

As someone who worked for the Appellate Court Branch of the National Labor Relations Board in Washington, D.C. for four years before joining the faculty at UT, Hirsch says he is hopeful that the board will rise to the challenge and update its interpretations of the law, which was passed in 1935 and hasn't been substantially revised since 1959. But he doesn't sound very hopeful (HatTip to Instapundit; you can download the paper from http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=957606).

"Despite the NLRA's former prominence, the path to its ignominious end is already in view, as unions' avoidance of NLRA procedures that they consider slow and hostile to their interests is growing," he says. "In particular, unions have increasingly found it beneficial to organize workers by directly negotiating with employers and avoiding the NLRA representation process."

He gives as an example the attempt by the Service Employees International Union to represent employees of Argenbright Security at Los Angeles International Airport. After an Internet advertising campaign, "The SEIU's efforts were ultimately successful, as Argenbright recognized the union following an agreement to hold a non-NLRA election, which the union won handily."

The tricky bit is that most employee e-mail is sent through the employer's computer system, and employers might not want their equipment used to assist a union organizing campaign. The question is, what precedents apply? As a rule, employees' right to discuss union matters during nonwork time and in nonwork areas is protected. That may have made sense when workers downed tools at a certain time and repaired to a break room for lunch, but what does it mean for people who work at their computers all day and have considerable freedom to set their own schedules?

Hirsch says, "For example, significant questions exist regarding an employer's authority to ban nonwork Internet communications. Under a long-standing prohibition against discriminatory restrictions, an employer would normally be forbidden from barring union-related messages while allowing other nonwork Internet communications. Many employers have instituted broad restrictions that apply to all nonwork Internet communications, thereby avoiding this discrimination problem. Yet, such policies implicate several other potential hazards for employers.

"First, an employer must consistently enforce a stated limitation on nonwork Internet communications; if a policy is widely ignored, the employer may waive its ability to apply the otherwise valid rule to union-related communications in the future.

"Second, even when enforcement is not a concern, a nondiscriminatory ban on all nonwork Internet communications - particularly in workplaces where Internet use is heavy - could significantly limit employees' ability to discuss the merits of unionization. Therefore, a broad nonwork e-mail ban, although technically within employers' right to control their property, may unlawfully interfere with employees' NLRA right to discuss unionization."

I would add that the privilege of using the employer's telephone for occasional private matters (as long as it doesn't interfere with getting the work done) is much appreciated by office workers arranging dental appointments, say, or trying to straighten out an error on their credit card while they're eating a sandwich at their desks. A similar privilege for the employer's computer would be similarly appreciated (and, judging by the Rocky's incoming Web traffic during the workday, is already widely exercised), and its unnecessary prohibition resented.

The board has often tried to reconcile the conflict between workers' rights under the NLRA and the property interests of their employers, Hirsch says, but the Internet both complicates existing problems and creates new ones. "The employer's ability to monitor employees' use of its Internet system, for example, directly implicates the NLRA's ban on surveillance. Yet, restricting employers' ability to monitor their own Internet systems may encroach upon employers' property interests."

The board makes a distinction between oral solicitations and written distributions, which come under different rules. "This distinction has never made sense and is even more absurd when the communication is electronic," Hirsch says, noting that one of the rationales for the different rules was that handing out leaflets might cause litter. What, little zeroes and ones falling out the ends of the cable?

Hirsch favors strong protection for Internet communication about unionization because the costs to employers are minimal and it is an effective means of furthering discussion. Agree with him or not, he's raised a lot of interesting issues.

Linda Seebach is an editorial writer for the News. She can be reached by telephone at (303) 954-2519 or by e-mail at seebach@RockyMountainNews.com.

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