If you have a union in your workplace, or if unions have tried to organize workers in your workplace, you know that unions need ways to communicate with your employees. Before the current digital age, unions relied primarily on communicating through informational picketing and leafleting, posters and mailings, and individual and group meeting to encourage unionization or to communicate with members and represented employees. Today, with the modern workplace and internet-connected workers, communications can be conducted far more quickly, efficiently, cheaply and often more effectively through electronic means, such as email. But historically, unions have not been permitted access to company email systems. The current rule is that “employees have no statutory right to use the[ir] Employer’s e-mail system” for non-work-related purposes. If unions and the current Presidential administration get their way, that all might change.
When a union tries to organize workers in a location, or when it already represents employees in a workplace, under the National Labor Relations Act it is generally entitled to certain information about employees, such as their names and addresses. With old-school communications methods, that was usually sufficient. But nowadays, unions want to be able to email represented workers or supporters in a drive to unionize. The want email addresses (as well as cellphone numbers for calling and texting, and maybe even Facebook friendships and Twitter handles). Rather than having to get each individual’s personal email address, unions would really like to be able to send messages through an employer’s email system to all employees, or relevant groups of employees. Why wouldn’t they? Employers have and use those systems because they are easy, quick and productive ways to provide information to and communicate with employees. Union’s know that too, and they want what companies already have.
So unions are trying to convince the National Labor Relations Board (NLRB) — the federal agency over union-employer matters that has a five member rule-making board appointed by the President — that they need and should have the right under the NLRA to access and use employer email systems. The current NLRB is quite interested in and sympathetic to this union request, so much so that in a pending case, Purple Communications, Inc., the NLRB has invited briefs on whether the current Guard Publishing precedent should be overturned. (Unlike with courts, the NLRB can overturn prior Board decisions and does not have to “respect” and follow the decisions of prior Boards from different administrations.) Since the current NLRB has taken many steps in the past 6+ years to make it easier for unions to organize workers, and they see how much easier it would be for unions to get a foothold into currently union-free workplaces if they had a legal right to use an employer’s email system to try to communicate with workers, a decision to overturn Guard Publishing would not be any great surprise.
Any decision to permit union’s or employees to use employer email systems for non-work purposes will surely draw strong objections (and a likely appeal and court battle) from employers and their associations and representatives. But smart employers should prepare for the reasonable likelihood that the NLRB will rule that unions, or at least employees, must be given access to corporate emails systems for non-work purposes, and that union business or organizing efforts cannot be excluded, as they currently are.
As an employer, how can you prepare for this real possibility? Talk to legal counsel and technology experts about your existing systems, how to protect them, how they are used, and consider what vulnerabilities they might have or how they might be used (or not used) to work against any argument that a union or employees should have such a right to access them. Think about alternative means of communications and new technologies that might be less susceptible to or appropriate for an outside entity such as a union to access, or inappropriate for non-work purposes including union activity. Support business groups and associations that will fight against such access and try to convince elected officials that any such change by the NLRB is improper, illegal, and/or bad policy — and certainly is bad for business. Lastly, get out in front of those possible threat so you will be ready for any rules or changes coming down from the NLRB. Smart employers stay prepared and put plans in place ahead of problematic changes. You do not want to be only reacting after new rules are in place and pose an immediate threat. In a situation where unions or sympathetic employees will be trying to access and use your email system, the best defense is certainly a good offense, and wise preparations can help keep your workplace union-free and keep existing unionized employees from overly interfering in your daily operations.