Employers May Restrict Use of E-Mail
Posted by: John Gilliland
January 25, 2008

I think I am now on track to do better in keeping this blog up to date... we'll see.  

Since I last wrote, probably the thing that has been getting the most play and discussion among employment lawyers is a decision in December 2007 by the National Labor Relations Board ("NLRB").  It ruled that employers have the right to prohibit workers from using the company's e-mail to send out union-related messages as long as the employer had a policy barring employees from sending e-mail for "non-job-related solicitations."  The Guard Publishing Co dba The Register Guard, 351 NLRB 70 (Dec 16, 2007).

In fact, the employer in that case allowed a number of non-work-related employee e-mails, but there was no evidence it permitted e-mails urging support for groups or organizations.  The NLRB held that unlawful discrimination against a union occurs only when union communications are prohibited while other communication "of a similar character" (such as from other outside organizations) are allowed.  In this case, that did not occur.

Given how common e-mail has become, it is an important decision for employers.  However, the NLRB was closely divided.  The vote was 3-2.  Thus, the rules could easily change in the future.

A valid no solicitation/no distribution policy is an important part of your personnel policies, especially if you want to control and manage union activities.  But, it needs to be carefully written to be lawful and control union solicitation.  It is something to seek knowledgeable legal advice concerning. 

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Is There Such a Thing as a "Neutral" Labor Law?
Posted by: John Gilliland
June 26, 2007

This morning the United States Senate defeated the "Employee Free Choice Act." That Act was strongly supported by organized labor and would have required an employer to recognize a union if the employer was presented with union cards signed by a majority of their employees in an appropriate bargaining unit. It would have short circuited the usual way a union is recognized which is by a secret ballot election.

I get a kick out how bills are titled. The "Employee Free Choice Act"? Come on. The original Labor Management Relations Act enacted back in the 1930s was Congress' effort to end crippling strikes for union recognition occurring back then. A basic concept of that law was to put democracy in the workplace by requiring employees to vote in secret concerning whether or not they want a union.

The so-called "Employee Free Choice Act" would turn that concept on its head by ignoring the intimidation and misinformation that can lead an employee to sign a union card. Just as in our election for government officials, the secret ballot election allows an individual to express his or her true choice, not one that has been coerced.

But, actually, what really came to my mind as I read about the "Employee Free Choice Act" is a question I liked to ask on exams when I taught a graduate level labor law course at a midwestern university many years ago. That question was, "Is there such a thing as a neutral labor law?" I did not care whether the student answered yes or no. What I cared about mostly was the reasoning they used to support their positions.

Most of the students concluded there is no such thing as a neutral labor law. That is my own position as well.

Whatever change is made to labor law tends to benefit either the employer or the union. While all changes are argued to be for fairness, they all come down to either the employer or the union trying to achieve a change that benefits them.

Take the "Employee Free Choice Act." It has nothing to do with an employee's free choice. As our own political system establishes, a secret ballot election is a hallmark of freedom. The "Employee Free Choice Act" is nothing more than a recognition by unions that they are losing many elections these days. What better way to increase their chances of winning than to do away with the secret ballot.

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