Labor Law For Managers Of
The American Business Law Journal first published this article and has graciously allowed LawMemo.Com to republish the article. It was originally published in the Summer of 2003 in Volume 40(4), American Business Law Journal, starting at page 827.[ad/articles728.htm]
A review of recent cases involving section 7 of the National Labor
Relations Act (“NLRA”)1
reveals two themes that are very important to non-union managers in the private
sector. First, it is time for renewed discussion of the application of
traditional labor law to non-union workplaces.2
New insights are needed because the National Labor Relations Board (the
“NLRB” or the “Board”) and the federal courts have taken a more
expansive view of what, under the NLRA, constitutes “protected concerted
behavior” in the workplace. Consequently, some NLRA protections applicable to
union-represented employees are being extended to non-union employees.3
Therefore, managers in non-union workplaces need a solid understanding of
traditional labor law, including the constraints it imposes on investigations,
workplace policies, and discipline.
This article will discuss the concept of the two-prong requirement under section
7— (1) concerted and (2) protected behavior—and address the following
questions: How can managers in a non-union workforce conduct thorough, fair
interviews of employees in a sexual harassment investigation without violating
the employees’ rights to coworker representation? What work rules may managers
enforce that restrict employees from talking to each other or outsiders about
workplace issues? What restrictions does federal labor law impose on
disciplining employees who are disruptive or insubordinate?
Second, as employees use electronic communications technology on the job, the
NLRB and the courts4
struggle to develop a new cyberlaw5
for labor law contexts.6
Certainly, e-mail and access to the Web give employees new ways to air their
concerns with coworkers, management, government regulators, community leaders,
and the press.7
Employees may also use employer-provided e-mail and Internet access to send
messages to coworkers. With this, employees may protest unfair work rules or
post a comment about poor wages on an electronic bulletin board. Although much
has been written about the protections offered to non-union employees using the
Internet for union-organizing purposes,8
this article will discuss the less explored protections that are
available to such employees who are using the Internet for non-union organizing
In particular, this article will focus on how federal labor law protects
these “non-organizing employees” as they seek to join with their coworkers
on matters of mutual concern in the workplace.10
For some employees, electronic communications technology has produced more than
new ways to communicate about their workplace concerns; it has created a virtual
workplace or “cyber workplace.”11 This article
will therefore explore the similarities and distinctions between a cyber
workplace and a traditional workplace. It will argue that it is time for the
courts and the NLRB to recognize the cyber workplace and apply section 7 to this
new dimension. Consequently, non-union managers need to anticipate application
of Section 7 to cyber or virtual workplaces.12
This article addresses questions related to the application of labor law
to virtual workplaces that the NLRB and courts are just beginning to address,
including: May company managers avoid unfair labor practice charges by
establishing policies that prohibit non-business use of company computer systems
and Internet access? Is it a violation of federal labor law for management to
access employee-created Web sites, without authorization, to learn what
employees are saying about the company or its managers?
Although the two themes discussed above are a useful way to analyze the legal
challenges facing non-union managers, the themes describe different dimensions
of non-union labor law rather than separate topics. For example, non-union
managers generally manage both cyber and non-cyber workers in the same workplace
because access to computers to communicate on the job is part of some
employees’ jobs, making them cyber workers, while other workers may not be
required to access computers to do their jobs. Therefore, non-union managers
must understand when the rights of a cyber worker differ from those of a
non-cyber worker. The overall goal of this paper is to discuss important legal
issues in traditional and cyber labor law that face contemporary managers of
II. Employee Rights Under Federal Labor Laws Begin With Section 7 Of The NLRA
Discussion of the rights of private sector, non-union employees under
federal labor laws logically begins with Section 7 of the NLRA.13
Section 7 of the NLRA gives “[e]mployees ¼
the right . . . to engage in . . . other concerted activities for
the purpose of mutual aid and protection.”14
In other words, employees have the right to engage in concerted, protected
activity in the workplace that goes beyond their rights to engage in
When an employer disciplines or terminates an employee for exercising his or her
Section 7 rights, whether the activity is union-related or not, it is an unfair
To be insulated from adverse action by employers, employee activities must be
“concerted” and “protected,” terms that are subject to interpretation by
the NLRB and the courts.17
The concept of concerted, protected activity has expanded over time to embrace
new situations in the workplace.18 One of the new
contexts for the application of Section 7 is employee use of electronic
technology in the workplace.19
It is clear that Section 7 covers employee behavior in a private sector,
non-union workplace when that behavior is both concerted and protected.20
The challenge is to determine what satisfies this two-prong requirement of
“concerted” and “protected” behavior.
A. Section 7 Covers Non-union Employee Behavior That Is Concerted
Employees covered by collective bargaining agreements, “union employees,”
who engage in individual action are more likely to be found to have engaged in
“concerted activity.” When a union employee acted alone to protest a work
assignment that he believed was unsafe, his behavior was concerted activity
under Section 7 because he was seeking to enforce rights to protest unsafe work
that were contained in a collective bargaining agreement.21
The NLRB has justified the more favorable treatment of individual action by
union employees on the basis that an individual employee’s actions to enforce
the collective bargaining agreement are viewed as an extension of the concerted
action that produced the agreement.22
A second rationale is that the individual’s assertion of a right under a
collective bargaining agreement is assumed to affect the rights of all employees
covered by the agreement.23
A non-union employee acting on the basis of an individual gripe with his or her
employer is usually not protected by Section 7 because this is not concerted
For example, a non-union truck driver who complained to a supervisor about the
maintenance of trucks and sick pay was not protected because he expressed only a
Communications by a non-union employee that are job-related, but not concerted,
are generally not protected by Section 7.26
Non-union employees who act “in concert” generally must act as a group,
although the concept of concerted behavior is broad enough to include employees
who initiate, induce, or prepare for group activity, or who are spokespersons
for other employees on matters of common concern.27 For example, in Reef
Industries, Inc., two employees protested a personnel manager’s statements
in a labor hearing that non-management employees in this workplace had only a
After two employees heard about the personnel manager’s statements from
another employee, one of the employees drew a cartoon depicting the personnel
manager as a person of low intelligence.29
Then the two employees put the cartoon on a T-shirt.30
The employees sent the T-shirt to the personnel manager along with a letter
protesting the personnel manager’s statements in the hearing.31
This was concerted activity because the two employees acted together.32
It was also found to be protected activity.33
Concerted activity includes organized employee protests as well as spontaneous,
informal employee conduct.34
For example, when employees participate in a group protest that spontaneously
erupts in the workplace to protest working conditions, hiring practices,
employee discipline, or work assignments, they are engaging in concerted
activity under Section 7.35
In sum, non-union employees who act with other employees or on behalf of other
employees, whether formally or spontaneously, satisfy the first prong and act in
concert under the NLRA. Section 7 only covers employee communications that are
both concerted and for the mutual aid and protection of employees.36
B. Concerted Behavior Must Be For Mutual Aid and Protection To Be Protected By Section
This section addresses the second prong of when concerted behavior is for the
mutual aid and protection of other employees and will consequently address when
concerted action will be protected by Section 7, such that Section 7 will
restrict managerial action. Section 7 protects employees who engage in concerted
activity for “other mutual aid or protection,” even if it is not
The statutory protection for employee concerted activity that is considered for
“other mutual aid or protection” is very important to non-union employees;
it shields many forms of employee behavior from discipline. As the Supreme Court
held in Eastex, Inc. v. N.L.R.B., the reach of Section 7 is broader than
concerted activities related to collective bargaining and includes employees’
activities aimed at improving terms and conditions of employment or otherwise
improving their lot as employees.38
The broad scope of Section 7’s protection of employee concerted activity that
is for “other mutual aid or protection” includes:
[A]iding a discharged employee in filing an EEOC complaint, alerting management
to a malicious rumor, posting a sign and alerting the news media that a
mysterious illness was afflicting workers . . . discussing work schedules with
coworkers, making efforts to secure paid maternity leave for a coworker
. . . distributing materials urging coworkers to vote in favor of a local
ordinance concerning random drug testing, and using an internal electronic mail
system to oppose and enlist other employees to join in opposing the employer’s
implementation of a new employment policy.39
When concerted action is also protected under the NLRA, non-union employers
cannot lawfully discipline employees for their behavior or establish work rules
or policies that unduly restrict employees’ rights to engage in that behavior
in the workplace.40
Discipline of employees for behavior protected by Section 7 is an unfair labor
practice, even if there is no evidence that the employer had a motive or intent
to discourage employees from engaging in Section 7 behavior.41
Although Section 7 rights are very broad, there are limits. The NLRB and the
courts have found that some forms of concerted employee behavior are unworthy of
protection even if they are apparently for mutual aid or protection.42
When employees break the law,43
engage in violent behavior,44
refuse to follow the employer’s instructions,45
behave disloyally toward their employer,46
or breach a contract such as a collective bargaining agreement,47
their concerted activity will not be protected.
For example, a group of employees who refuse to work as instructed on the
employer’s premises may not be protected by Section 7.48 In labor law
terminology, employees who refuse to work while on the employer’s premises may
be described as engaging in a “sit down strike.”49
The NLRB and the courts will balance the employees’ rights under Section 7
with the employer’s property rights, and may find the sit down strike is
The “courts appear to look at the intrusiveness of the work stoppage (both
duration and manner), and the purpose of the stoppage (to call attention to
grievances or to inflict punishment against the employer).”51
When employees engage in an unprotected refusal to work, the NLRA will not
restrict the employer’s right to discipline or terminate the employees. When
employees’ refusal to work is protected, an employer who fires employees
because they will not return to work will violate Section 7.52
In contrast, due to the NLRB’s long-standing respect for employer property
rights, an employer who fires employees because they will not leave the
workplace after refusing to work may not violate Section 7.53
Employees who act disloyally and disparage the employer’s business activities
to customers may lose Section 7 protection.54 Even in a union
organizing situation that would ordinarily receive great protection under
Section 7, when employees distributed handbills to the public that criticized
the quality of the television programming offered to customers by their
employer, such disloyalty was not protected under Section 7.55
Also, employees were not protected when they took confidential pay information
from the employer’s private files without authorization.56
However, employees do not lose Section 7 protection when they make false
allegations about employers, as long as the statements are not made knowingly or
For example, an employee was protected when he mistakenly claimed the union had
a tape recording of a manager admitting the employer was taking money out of
employees’ profit sharing accounts to pay lawyers to fight the union.58
Although the employee had not personally listened to the tape recording, and had
described its content inaccurately, his suspension for making false statements
that violated Section 7 was overturned by the NLRB.59
The NLRB held that the statements were protected because the employee
reasonably believed he was giving an accurate report of the tape recording.60
Given the wide range of protected activity under Section 7, non-union managers
need to be alert to the constraints on disciplining employees who may be
involved in protected concerted behavior.
C. Section 7 Protections Are Available In Cyber Workplaces.
Advances in electronic technology have changed the context in which the
concerted behavior may occur,61 but this has not
removed the protections of Section 7 or altered the ability of managers to
lawfully discipline employees who use employer provided technology in
unreasonable ways that result in loss of Section 7 protection.62
There are three general categories of employee communications involving employee
use of employer-provided electronic communications equipment, such as e-mail
systems or Internet access:63
(1) communication about personal matters; (2) communication that is concerted
and for the mutual aid and protection of employees; or (3) communication that is
job-related, but not concerted.64 Only in the
second category, electronic communications that are concerted and for the mutual
aid and protection of employees, will Section 7 constrain the prerogatives of
managers to discipline employees or promulgate workplace policies for the
content of their electronic communications or use of the employer’s electronic
Similarly to the traditional workplace, employees engaged in concerted behavior
may lose the protections of Section 7 by acting unreasonably or unlawfully. For
example, an employee’s e-mail to the employer’s customers disparaging the
employer’s products or services is just as unprotected as a letter sent
through the U.S. Mail.65
Likewise, unauthorized employee access of an employer’s computer system, to
disrupt the employer’s business, is as unprotected as disrupting the
employer’s business in person.66
Given the expansion of avenues of communication that advances in technology have
created, it is now more important than ever for managers to identify employee
discipline situations that involve protected, concerted activity to avoid
triggering unfair labor practice charges for interfering with employees’
Section 7 rights.
III. Management Prerogatives in a Non-union Workplace That Are Constrained by Labor Law Protections
Application of Section 7 in a non-union workplace, including a cyber
workplace, results in some specific limitations on an employer’s ability to
conduct workplace investigations, to discipline employees and to establish and
enforce workplace policies.67
In part, this section of the article discusses the extension of existing legal
principles in the traditional workplace to cover non-union cyber workers. While
it is not imperative to distinguish between employees who work in traditional
workplaces and those who work in cyber workplaces when discussing investigations
and discipline, it is another matter when discussing policies and discipline
related to enforcing policies. As the following discussion will show, it is
critical to understand this distinction in order to assess the impact of Section
7 on management prerogatives related to establishing and enforcing workplace
policies, specifically business-use only policies that limit employee
solicitation of other employees on Section 7 matters.
A. Workplace Investigations: Will Employers Choose Electronic Monitoring Or Utilization of Computer Forensics Over Obtaining The Employee’s Side Of The Story?
When an employer investigates workplace misconduct, it may interview employees
who are either suspected of misconduct or believed to have knowledge of employee
If a meeting is conducted between an employer and an employee prior to a
decision to discipline an employee, under Section 7 the meeting is an
Such a pre-disciplinary interview may be distinguished from a meeting conducted
after a disciplinary decision has been made to inform an employee that he or she
is being disciplined.70
Section 7 is the source of the well settled rule established in N.L.R.B. v.
J. Weingarten, that a union-represented employee is entitled to have a union
representative present in an investigatory interview with the employer (Weingarten
The right of union representation for union employees applies when an employee
may reasonably believe the meeting may result in discipline.72
Recently, in Epilepsy Foundation of Northeast Ohio (Epilepsy Foundation),
the NLRB ruled that an employee in a non-union workplace also has a Section 7
right to have a coworker of his choice present in meetings that have the
potential to result in disciplinary action.73
In Epilepsy Foundation, the Board extended Weingarten rights to
the non-union workplace, departing significantly from its prior position on this
issue that had been unchanged for approximately fifteen years.74
In Epilepsy Foundation, Arnis Borgs, an employee in a non-union workforce
refused to meet with two managers—Rick Berger, his supervisor on a project,
and Christine Loehrke, Executive Director—unless a coworker, Ashraful Hasan,
was also permitted to attend the interview.75
Borgs’ employer refused to allow Hasan to be present for the meeting.76
In a 3-2 decision, the NLRB held that termination of Borgs for his refusal to
attend the meeting with the employer, without the presence of his coworker, was
a violation of Borgs’ Section 7 rights and was an unfair labor practice.77
The purpose of the meeting was to investigate two memos that Borgs and Hasan had
In the first memo, employees Borgs and Hasan told Berger, their supervisor, that
his supervision of them on a particular project was no longer necessary.79
After learning that Berger and Loehrke, another manager, were unhappy with the
first memo, Borgs and Hasan wrote a second memo elaborating on the reasons that
they believed Berger’s supervision was no longer required.80
This memo criticized Berger’s involvement in the project and provided examples
of incidents where Borgs and Hasan claimed Berger acted inappropriately.81
Borgs had been reprimanded on a previous occasion following a meeting with
Berger and Loehrke.82 Due to his
previous experience of being disciplined, Borgs had reason to fear that meeting
with Berger and Loehrke to discuss the two memos would result in discipline.83
Based on these facts, the NLRB held that Borgs had a Section 7 right to insist
on the presence of a coworker in the meeting with his managers.84
It therefore found that Epilepsy Foundation had violated the NLRA when it fired
Borgs for insubordination based on his refusal to meet alone with his
supervisors.85 In reaching this
decision, the NLRB interpreted Section 7 to give non-union employees the right
to demand the presence of a coworker representative in an investigatory meeting.86
Epilepsy Foundation appealed this decision to the D.C. Circuit Court of Appeals.87
The D.C. Circuit held that the NLRB’s decision to extend Weingarten
rights to non-union workers was a reasonable interpretation of Section 7 and
deferred to the NLRB’s decision on this issue.88
Rejecting the employer’s argument that the presence of a non-union coworker in
an investigatory interview is neither concerted nor for the mutual aid and
protection of employees, the court ruled that the presence of a coworker in a
non-union workplace is consistent with the rationale for Section 7 rights.89
The court found that even non-union employees have a shared interest in
preventing the imposition of unjust punishment.90 As the appellate
court explained: “[T]he presence of a coworker gives an employee a potential
witness, advisor, and advocate in an adversarial situation, and ideally,
militates against the imposition of unjust punishment by the employer.”91
Advances in electronic technology have expanded the avenues of employee
communications in the workplace and the potential forms of employee misconduct,
giving rise to new investigatory obligations on the part of employers.92
Racial or sexual harassment through e-mail communications, and the ability to
download or view pornography in the workplace on employer-provided computers,
are relatively new ways that employees may violate employment policies and
discrimination laws.93 There are two
essential questions that managers should ask before investigating and
disciplining an employee for racial or sexual harassment committed while using
the employer’s electronics communications equipment.94
First, is the employee entitled to demand the presence of a coworker
representative in an investigatory interview? Second, is the content of the
electronic communication made by the employee protected concerted activity under
To answer the first question, assume a non-supervisory employee accused of
sexual harassment that involves misuse of e-mail is to be interviewed by a
manager. As with the traditional workplace, this employee has a Section 7 right
to demand that a coworker representative be present in the interview. This is
true whether the e-mail harassment being investigated is classified as: (1)
communication about personal matters; (2) concerted communication for the mutual
aid and protection of employees; or (3) job-related, but not concerted,
communications. The Section 7 right to demand the presence of a coworker
representative in an investigatory interview is itself protected, concerted
behavior under Section 7, even if the content of the electronic communications
is not protected by Section 7.95
Next, applying the hypothetical, consider the second question: whether the
content of a sexually harassing electronic message would be protected by Section
7. The extension of existing legal principles in the traditional workplace is
also evident here. No matter into which category the sexually harassing
communication falls, ultimately it would not be protected by Section 7. For
example, if the sexually harassing communication is categorized as a
communication about personal matters,96
or an individual gripe about the workplace,97 Section 7 would
offer no shelter for the employee’s sexually harassing conduct. Assuming,
however, that the sexually harassing communication was a concerted act by a
group of employees,98 because the
conduct is unlawful under federal and state law,99
the communication would lose its protection under Section 7.
Managers investigating sexual harassment or other unlawful harassment complaints
may find that the obligation to provide employees with coworker representatives
in investigatory interviews has drawbacks from a managerial perspective. The
employer has a legal obligation to conduct an adequate investigation of
complaints about unlawful harassment.100 However,
providing employees with a coworker representative during an investigatory
interview may enable employees to collaborate on a “story”101
and thereby undermine the employer’s ability to adequately investigate the
To illustrate the potential drawbacks to managers of permitting a coworker
representative to be present during an employer’s investigation process,
assume an employer decides to investigate a sexual harassment complaint and
schedules an interview with an alleged harasser. Further assume that the
employee to be interviewed selects another coworker, who also happens to be one
of the alleged harassers, to act as a coworker representative.102
In this situation, the employee to be interviewed has the right to meet with the
alleged harasser/coworker representative privately, prior to the investigatory
Because the employee’s Section 7 rights under the NLRA prohibit the employer
from interfering with the employee’s choice of coworker representative,104
there is an obvious opportunity for coworkers to collaborate on a “story”
and impede the employer’s investigation of sexual harassment in the workplace.
Of course, the employer may forego an investigatory interview in this situation
or give the employee the choice of going to the interview alone or not being
However, foregoing an investigatory interview would come at the cost of
not being able to investigate fully the allegations of harassment by
interviewing all the employees who may be able to provide relevant information.106
An employer who fails to conduct a thorough investigation of sexual harassment
in the workplace risks civil liability for the harassment.107
Given the scope of employee Section 7 rights in investigatory interviews as
described above, it may not be practical or effective for many employers in
non-union workplaces to conduct investigatory interviews.108 In addition, Epilepsy
Foundation also imposes constraints on an employer’s investigation
process. However, with technology providing new ways for employees to engage in
misconduct, employers may find there is increased need to conduct
For example, potential misconduct now includes employees using the
employer’s computers and Internet access for personal reasons,110 using e-mail
to send harassing messages to other employees,111
using the Internet to access pornography,112
or using computer systems and Internet access to download and misappropriate the
employer’s trade secrets.113
Advances in technology also are providing new tools for workplace investigations
that may be an alternative to conducting investigatory interviews of employees
and other witnesses.114
Electronic monitoring systems enable an employer to monitor an
employee’s word processing and data entry tasks on a computer, e-mail use, and
Internet use to detect personal use and access to indecent or pornographic
Software used to monitor employee misuse of computer resources may also
be used to automatically identify potential threats associated with terrorist
activities, hate crimes, bomb making, or illegal narcotics.116 Further,
computer forensics tools enable the employer to recover evidence of computer use
that could exonerate the employee or provide evidence of misconduct. This
recovery is possible even if employees have attempted to delete computer
evidence of their misconduct.117
Employers who use electronic monitoring and forensics tools to investigate
employee misconduct in ways that do not involve interviewing employees are not
encumbered by the right of coworker representation because this practice does
not involve investigatory interviews.118
If evidence of employee misconduct is obtained through electronic monitoring or
forensics tools, and the employer thereafter decides to confront the employee
with the allegations, the investigatory interview rules will apply; at this
point, non-supervisory employees will have the right to demand coworker
sound evidence gathered outside the investigatory interview context, in advance
of the interview, may offset the practical limitations of having a coworker
representative involved in the investigatory interview. Computer evidence may
corroborate, or discredit, evidence obtained from witnesses through the
B. Employee Discipline: Does Section 7 Limit The Employer’s Ability To Discipline Employees For Griping?
There are many ways for employees to use technology for communications that give
rise to disciplinary scenarios. As with non-union employees in the traditional
workplace, cyber workers enjoy basic protections from discipline when they
participate in concerted activity to improve their working conditions or to
protest allegedly unfair disciplinary action.120
For example, when employees send e-mails with critical comments about their
employer or supervisor to coworkers or even to persons outside the workplace,
the communication may be protected under Section 7.121
Whether online or in person, most gripes by employees about management or
supervision will not be protected because individual gripes, as opposed to
concerted action, are not covered by Section 7.122
Alternatively, gripes about a supervisor may not be protected because the
selection and retention of a supervisor has been traditionally viewed as a
management prerogative, not a matter of concern for subordinates.123
In a narrow category of cases the assignment of a supervisor is a matter that is
directly related to the employees’ terms and conditions of employment, and
concerted activity by employees to have a supervisor discharged or replaced may
be protected.124 However,
ordinarily when employees criticize a supervisor in an attempt to have the
supervisor removed or discharged, it will be insubordination that is not
protected by Section 7.125
For example, refusal by employees to recognize a supervisor’s authority has
been found to be gross insubordination that is not protected by Section 7.126
The point where employee criticism of supervision loses its protection and
becomes insubordinate refusal to accept supervision is described in the
appellate court’s decision in Epilepsy Foundation.127 The NLRB held
that Ashraful Hasan had been terminated for participating in protected concerted
activity in the workplace that involved coauthoring two memos complaining about
supervision and discipline he had received.128
On appeal, the D.C. Circuit reversed this part of the Board’s decision,
holding that Hasan’s conduct amounted to defiant rejection of the assignment
of a supervisor to oversee his work, and that this was plainly insubordinate
behavior unrelated to his terms and conditions of employment.129
The D.C. Circuit also noted that the NLRB did not suggest that Hasan’s
refusal to sign a statement of performance objectives was protected by Section
7; the D.C. Circuit affirmatively stated that this conduct was not protected.130
Where the employee’s conduct is not protected, the NLRB has no power to
interfere with the disciplinary decisions of an employer, even where that
discipline appears unfair:
The Board does not have authority to regulate all behavior in the workplace and
it cannot function as a ubiquitous “personnel manager,” supplanting its
judgment on how to respond to unprotected, insubordinate behavior for those of
an employer. It is well recognized that an employer is free to lawfully run its
business as it pleases. This means that an employer may discharge an employee
for a good reason, a bad reason, or no reason, so long as it is not for an
The well established rules developed for a traditional workplace also appear to
generally extend to the cyber workplace in regard to protecting employee
criticism of employer policies impacting employees’ terms and conditions of
employment. This is evident in the Timekeeping case, where the employer
could not lawfully enforce its cyber workplace rules in a way that discriminated
against the employee’s Section 7 rights.132
There, a non-union employee sent e-mail messages to other employees on the
company’s computer system criticizing the employer’s proposed vacation
The employee was terminated as a result of his use of the e-mail system.134
The NLRB held that the employee’s e-mail messages were concerted protected
activity under Section 7.135 Therefore, it
was an unfair labor practice when the employer terminated the employee for his
e-mail communications — at least where the policy was communicated by managers
to employees via e-mail and the employer had permitted employees to send
“simple” e-mail messages to each other on company computers.136
Aside from the e-mail method used to communicate the criticism, the NLRB applied
the traditional rule to the cyber workplace, stating that employee criticism of
an employer’s vacation policy sent to other employees with the intent of
gaining coworker support to retain the current policy is clearly protected,
concerted activity because it relates to the terms and conditions of employment.137
Furthermore, employees’ e-mail communications may lose their Section 7
protection for the same reasons that non-electronic communications lose their
Section 7 protection.138
For example, employees lose the protection of Section 7 when they post an
employer’s confidential business information on the Internet.139
The General Counsel’s Office of the NLRB provided advice on a case where an
employee obtained an internal management memorandum that revealed the terms and
costs of a special retirement program proposed by the employer.140
The employee posted the memorandum on a union’s Web page.141
The General Counsel said the employee’s actions were not protected by Section
7 because the employer had a legitimate interest in protecting confidential
company documents from disclosure.142
In the opinion of the General Counsel’s Office, the employee’s posting of
this confidential employer information was not protected by Section 7, and the
employer did not violate Section 7 when it issued a written warning to the
employee for his behavior.143
C. Workplace Policies May Violate Section 7
A non-union employer’s workplace policies will be invalid under the NLRA if the policies violate the NLRA on their face or if they are discriminatorily applied against employees exercising their Section 7 rights.144 Unlike the investigatory and disciplinary contexts discussed thus far, managers developing workplace policies may need to make a distinction between a traditional worker and a cyber worker. The reason for this distinction is that the investigation and discipline rules presented above are mere applications of traditional rules to cyber workers where working in a virtual workplace makes no difference to application of the rule. In the context of workplace policies, however, application of labor law may depend on the cyber workplace distinction. This section will discuss when this distinction may be necessary in workplace policies by discussing Section 7 as it relates to traditional workplaces and cyber workplaces.
1. Overbroad Confidentiality and Wage Secrecy Policies Violate Section 7
Employers who have workplace rules that prohibit employees from discussing the
terms and conditions of employment with other employees or that require
management’s approval before employees may engage in protected concerted
activity will violate Section 7.145
However, the NLRB has approved employer policies that broadly prohibit
disclosure of private information about the employer’s business.146
A policy is acceptable if employees can reasonably understand from the wording
of the policy that it is designed to protect the employer’s legitimate
interest in maintaining the confidentiality of its private business information,
rather than to prohibit discussion of wages or working conditions, or require
pre-approval from management to engage in protected concerted activity.147
Even very broadly worded confidentiality policies such as: “Company business
and documents are confidential. Disclosure of such information is prohibited,”
have been held to be lawful.148
On the other hand, overly broad confidentiality policies have been found
For example, Kinder-Care Learning Centers’ confidentiality policy was found to
be a facially invalid policy.150
Kinder-Care’s confidentiality rule prohibited its employees from talking about
the terms and conditions of their employment with the parents of children who
attended Kinder-Care’s day care centers.151
Several Kinder-Care employees were also parents of children in the day care
Thus, the policy had the effect of prohibiting employees from talking about
working conditions with other employees as well as with customers of the day
Kinder-Care’s policy also required employees to bring all complaints about
their terms and conditions of employment directly to the employer before taking
them elsewhere, threatening possible discharge if employees violated the rule.154
The NLRB found that both parts of Kinder-Care’s confidentiality rule violated
The rule violated Section 7 because it restricted the employees’ rights to
talk with each other and with the parents of children in the center about the
terms and conditions of their employment.156
The rule also violated Section 7 because it required that any complaints be
taken first to the employer, restricting the employees’ right to go to other
entities, such as government agencies, for assistance in resolving workplace
Wage secrecy policies that require employees to keep their wages secret, or
otherwise prohibit the discussion of wages among employees, also violate the
In Epilepsy Foundation, the employer had an unwritten rule that employees
were not permitted to discuss their wages with other employees.159
The Board ordered the employer to cease and desist from maintaining a rule
prohibiting employees from discussing their wages with other employees and from
threatening employees with reprisals for such disclosures.160
These types of policies, whether formal or informal, violate the NLRA because
they do not permit employees to discuss their wages among themselves, conduct
that is clearly concerted and protected by Section 7.161
Of course, a policy prohibiting supervisors or managers from discussing their
wages with other supervisors or managers would not violate the NLRA because
supervisors and managers are not “employees” within the meaning of the NLRA
and do not have Section 7 rights.162
Recently the NLRB has held that employees also have a Section 7 right to discuss
sexual harassment complaints among themselves; employer policies that restrict
that right will violate Section 7.163 In Phoenix
Transit System, the employer committed an unfair labor practice by
maintaining a confidentiality rule that prohibited employees from discussing
their sexual harassment complaints and the employer’s response to those
complaints.164 The employer
also violated the NLRA by discharging an employee for violating the unlawful
confidentiality rule; the discharged employee wrote articles that were published
in the union newsletter that criticized the employer’s handling of sexual
In a cyberworkforce, employees with access to e-mail or the Web may choose to
discuss their wages or communicate about their working conditions using this
In the situation where employees have made sexual harassment complaints to an
employer and the employer’s response to those complaints is the topic of
discussion among employees, an employee in a cyberworkforce would be likely to
use e-mail, post a message on a Web bulletin board, or converse in an online
chat room in order to communicate with other employees about the topic. Under Phoenix
Transit System, the NLRB will find that such electronic communications are
protected, concerted activity.167
The NLRA rules that make wage secrecy policies and overbroad confidentiality
policies unlawful will apply in this new context.168
2. Overbroad No-solicitation/Distribution Policies Violate Section 7
Employees have special protections that allow them to engage in union
“solicitation” and “distribution” activities on their “non-work
time” in the workplace.169
These rights include solicitation of other employees on Section 7 matters,
including solicitation of support or opposition to a proposed union
representative, and distribution of literature related to other Section 7
No-solicitation/distribution rules adopted by employers violate Section 7 when
they interfere with Section 7 rights, such as the right of employees to
communicate with other employees about Section 7 protected matters.171
Under well-established rules fashioned for “brick and mortar” workplaces,
employees are entitled to engage in union activity in the form of
“solicitation” in work and non-work areas (the entire workplace) when
the activity occurs on non-working time.172
Employer no-solicitation policies that restrict these rights are invalid under
the NLRA, except when the employer can show special circumstances, such as
production and efficiency reasons, to justify restricting solicitation.173
For example, an employee may solicit another employee to join a union when the
two employees are on a break at their work stations, even though in a work area,
because the employees are not on working time.174
It is also well established that employees are entitled to engage in
“distribution” of literature (printed information or leaflets) about
protected concerted activities on non-working time, but only in non-working
The right to distribute literature is more limited than the right to engage in
solicitation because employees have no right to distribute literature in work
The rationale for this distinction is that there is adequate protection for
employee distribution of literature covered by Section 7 when employees receive
printed information in non-work areas, such as lunchrooms, parking lots, or
entrances to the workplace, because the employee may read it at a later time.177
The NLRB has also recognized that employers have valid concerns about litter and
the potential for production hazards in work areas that may result from
When an employer’s work rule restricting solicitation or distribution is
overbroad, it is presumptively unlawful.179 In these
cases, if the employer cannot justify an overbroad rule, the rule will violate
the employees’ Section 7 rights.180
The NLRB assumes that overly broad workplace policies tend to restrain and
interfere with employees’ rights under the NLRA, even if they are not
If a rule is presumptively unlawful on its face, it will be unlawful unless the
employer shows that the rule was communicated or applied in a way that conveyed
a clear intent to permit protected concerted activity.182
For example, a broadly worded policy that prohibited any distribution of
literature on plant property would be presumptively unlawful.183
It would be up to the employer to prove that, despite the rule, it intended to
permit distribution of Section 7 protected literature in nonworking areas during
nonworking time and clearly advised employees of its intent.184
Further, any rule requiring employees to seek permission from their employer
prior to engaging in protected concerted activities on an employee’s free time
and in non-work areas is unlawful.185
3. Are “Business-use Only” Policies for Electronic Communications Equipment Lawful?
Employer policies that prohibit employees from sending e-mail to coworkers or
accessing Web sites may violate the NLRA when they restrict employees from
communicating with other employees about matters protected by Section 7.186
On the other hand, the NLRB has recognized that an employer has valid property
rights in its computer equipment and systems, including the use of computer
equipment to access e-mail and the Web.187
These property rights may justify employer business-use only policies at least
in some situations.188 Therefore,
employer policies that restrict employee communications via e-mail or Web site
use must be examined under Section 7.189
May an employer issue a policy that completely bars employees from using
company-provided e-mail and other electronic technology for non-business
reasons? The answer appears to be “yes,” provided the rule is not
But there is room for argument.191
In Adtranz, the NLRB affirmed an Administrative Law Judge’s (“ALJ”)
decision that an employer may restrict use of its computer hardware, software
and electronic systems to business-use only.192
The policy in Adtranz provided:
Employees may use hardware/software and electronic corporate mail systems
provided by the company for business use only. The company reserves the
right to access and inspect file contents within the file storage and messaging
systems to insure the systems are not being misused. Where required for business
purposes, the company may access and inspect either the file storage system or
the message system and review, copy, or delete any files or messages and
disclose the information in both systems to others.193
In Adtranz, the ALJ concluded that an employer may restrict employee use
of employer-provided computer equipment and e-mail to business-use only,
consistent with the NLRB’s previous decisions that employees have no Section 7
rights to use of company bulletin boards, company telephones, and other company
property for non-business reasons.194
In Adtranz, the Board affirmed the ALJ’s finding that the employer’s
business-use only e-mail policy was facially valid.195
The ALJ also considered whether, despite a business-use only policy, the
employer had permitted personal use of its computer equipment and e-mail while
excluding use of the equipment and e-mail to discuss the union.196
The ALJ held that when an employer has a facially valid business-use only
policy, but permits employees to send and receive personal (non-work related)
communications through the e-mail system, the employer may not enforce its
policy in a discriminatory manner to restrict employees’ exercise of their
Section 7 rights.197 Therefore, if
an employer permitted employees to use computer equipment and e-mail for some
personal reasons, it would be unlawful to deny their use for union organizing or
other Section 7 reasons.198
In Adtranz, there was no evidence that the employer had refused to allow
employees to use company-provided computer equipment and e-mail for union
organizing or other Section 7 reasons, so there was no evidence that the
employer enforced the business-use only policy in a way that interfered with
employees’ Section 7 rights.199
Because the employer had not discriminatorily applied its business-use only
e-mail policy, there was no violation of the employees’ Section 7 rights.200
In Gallup, Inc. and United Steelworkers of America, the NLRB again
considered an employer’s policy that restricted the use of company e-mail to
business-use only, but this time the employer was found to have adopted the rule
only after it learned that employees were engaged in a union organizing drive.201
Despite the employer’s claim in Gallup that it had enforced
business-use only policies prior to learning of the union organizing drive in
its workplace, the ALJ found this was not the case.202
There, the employer allowed employees to use the Internet and e-mail for
non-business reasons prior to the union organizing drive.203
The ALJ found that even if the employer may have at one time enforced strict
business-use only policies, the policies in place at the beginning of the union
organizing drive were enforced more strictly after the employer learned of the
The Board affirmed the ALJ’s findings that the employer had violated the
Section 7 rights of its employees when it adopted a new rule prohibiting use of
the Internet for anything other than business.205
The Board held that the employer’s adoption of a business-use only policy or
stricter enforcement of an existing rule after learning that a union organizing
drive has commenced was discriminatory enforcement of an otherwise valid work
rule that violated Section 7.206
The NLRB ordered the employer to rescind the rule.207
The difference in the Adtranz and Gallup decisions is in the
timing of the employers’ adoption of business-use only policies. But in both Adtranz
and Gallup, the NLRB consistently applied Section 7 precedent from cases
that predated the influences of electronic technology in the workplace to cases
involving new electronic technology, including use of company e-mail by
On their face, these cases hold that employees’ use of employer e-mail systems
is not entitled to more protection than employees’ use of non-electronic types
of company property. However, Gallup makes clear that discriminatory
adoption of the rule to discourage union-organizing will violate Section 7.209
In light of these recent decisions, is it possible for the NLRB to hold that
employees have Section 7 rights to use electronic technology provided by their
employer even when the employer has a non-discriminatory business-use only
policy? Because employer-provided electronic technology, such as e-mail and
Internet access, may be considered part of an employee’s “work area,” the
answer should be “yes, in some circumstances.”210 Although Adtranz
and Gallup involved employers who adopted business-use only e-mail
policies,211 the NLRB
stopped short of deciding whether e-mail communications by employees on Section
7 matters can be prohibited by business-use only policies.
In Gallup, the NLRB did not need to address the question of whether
employer- provided electronic technology may be a “work area” because the
employer adopted its business-use only policy only after the union organizing
drive had commenced.212
The Board in Gallup focused on the employer’s discriminatory
enforcement of its business-use only policy and did not reach this more
Nor was the NLRB forced to address the question in Adtranz, because the
employer had not enforced its business-use only policy.214
Instead, the employer in Adtranz permitted personal use of
company-provided e-mail, and there was no evidence that the employer enforced
its policy to restrict union-related solicitations.215
As described above, employer property rights must give way to permit employee
union solicitation even in work areas, provided the solicitation does not take
place on “work time.”216 So, why
should not employees’ use of e-mail for union solicitation and distribution in
the workplace be protected by Section 7 as long as work time is not affected?
The NLRB has not decided whether employee e-mail communications, which would
otherwise be protected by Section 7, are solicitation or distribution. Since
e-mail is a writing, or at least an electronic record of a communication that
otherwise has the effect of a writing, when the e-mail is a one-way
communication from sender to recipient, it resembles distribution of literature.217
However, some e-mail communications are more similar to telephone or in-person
conversations, and invite an exchange of ideas between sender and receiver.218
For example, assume an employee sends an electronic message to a coworker to
complain about having his scheduled vacation cancelled due to the employer’s
promise that projects will be completed on time for a customer. Assume the
recipient of the e-mail message is also upset about having her vacation
cancelled; her e-mail response asks whether the other employee has any interest
in setting up a joint meeting to discuss the cancellation of scheduled vacations
with their supervisor. This type of electronic conversation is concerted, and is
likely protected, under Section 7. It also seems to fall in the category of
solicitation, not distribution, because it is analogous to an in-person
conversation, providing opportunity for a contemporaneous exchange of ideas.
If the NLRB rules that at least some e-mail communication is solicitation,
Section 7 would protect employees who communicate with each other by e-mail in
the workplace about Section 7 protected matters.219 Electronic
communications that qualify as solicitation, including conversations about union
organizing efforts or non-union topics such as the lack of heat in the
workplace, would be protected by Section 7 as long as they did not take place on
work time.220 Such a ruling
would mean employers would not be able to adopt or enforce business-use only
policies that interfered with employees’ Section 7 rights to engage in
solicitation in the workplace, within the limits of the solicitation rules.
In sum, after Adtranz and Gallup, the Board still may find that a
business-use only policy related to use of an employer’s computer systems is
unlawful. This is true even if the policy is enforced in a nondiscriminatory way
to prohibit all non-business communications, so long as the policy would
prohibit Section 7 solicitation by employees in their workplace. Such a Section
7 violation would occur if the business-use only policy precludes employees from
solicitation in a workplace that is in essence a cyber workplace.221
Although the NLRB has yet to issue a decision that reflects an understanding of
the cyber workplace context in which many employees now work, a few courts have
done so in the broader context of employment discrimination and tort cases.222
Two cases involving sexual harassment and invasion of privacy are illustrative.
In the first case, Blakey v. Continental Airlines, an employee argued
that gender-based statements made by coworkers in an online forum provided by
the employer through CompuServe should be considered as evidence of a sexually
hostile work environment.223
As the New Jersey Supreme Court said:
[A]lthough the electronic bulletin board may not have a physical location within
a terminal, hangar or aircraft [where the employee physically performed her
work], it may nonetheless have been so closely related to the workplace
environment and beneficial to [the employer] that a continuation of harassment
on the forum should be regarded as part of the workplace.224
The court in Blakey held that the trial court should have considered
whether the online forum was an extension of the employee’s workplace,
overturning a summary judgment for Continental Airlines.225
The case was remanded to the trial court to consider whether an online forum
provided by Continental Airlines through CompuServe to Continental Airlines’
employees was such an integral part of the workplace that harassment on the
online forum should be regarded as a continuation or extension of the pattern of
harassment that existed in the Continental workplace.226
In the second case, McLaren v. Microsoft Corp., Microsoft read an
employee’s e-mail messages after suspending the employee to investigate
allegations of misconduct including sexual harassment.227 After the
employee was fired, he filed a suit against Microsoft claiming that the e-mail,
which was in personal folders and password protected, was his personal property
so that it was an invasion of privacy for Microsoft to read his personal e-mail.228
According to the court, the former employee’s e-mail was not “private”
because it was “merely an inherent part of the office environment.”229
In both of these cases the courts explicitly or implicitly recognized that the
employees worked in cyber workplaces — workplaces with intangible dimensions
created by electronic communications technology that were an extension of the
It is time for the NLRB to recognize cyber workplaces. A cyber workplace is just
as real as a brick and mortar workplace. Employer-provided e-mail and Internet
systems used by employees to do their jobs are no less workplaces than the
physical offices where employees work. An employer could not seriously argue
that employees have no Section 7 rights to communicate with each other in the
offices where they work based on the employer’s ownership of the offices.231
Nor is the employer’s ownership of the computer and e-mail systems, upon which
the employee communicates the message, a valid reason to deny Section 7 rights.232
In both cases, employer-provided property is involved; the employer provides the
office as well as the computer and e-mail system. In essence, the only
difference between the in-person communication in the workspace and the e-mail
communication in the workplace is that the latter takes place in the
employee’s cyber workspace, rather than a brick and mortar workspace.
Assume that a conversation between two employees about their wages takes place
in an office where they both work and when the employees are on a lunch or other
work break. This conversation is protected by Section 7.233
If the employees have this same conversation by e-mail while they are not on
work time, it should not lose its protection simply because the employees
communicate their message by e-mail or other electronic means.234
It is recognized that a literal application of some NLRB decisions would support
the view that an employer’s property rights take precedence over an
employee’s Section 7 rights in situations involving access to
employer-provided equipment, such as computers and copy machines.235 However, the
rationale that focuses on the employer’s ownership of the communication
property does not apply when an employee works in a cyber workplace. In a cyber
workplace, the computer, e-mail system, Internet connection, and other
electronic communication equipment that the employee uses in his or her job are
“the” workplace, like the physical office space where an employee works.
Workplaces where employees use computers, e-mail, the Internet (including
real-time conferencing features and instant messaging), and Web sites are cyber
workplaces due to the intangible extension of the physical offices provided by
these forms of technology. The NLRB should extend the protections provided by
Section 7 from the currently recognized dimension of brick and mortar workplaces
to cyber workplaces, consistent with the purposes of the NLRA.
The NLRB and the courts should recognize cyber workplaces and apply Section 7 to
this new dimension of labor and management relations, including non-union
contexts. The NLRB should extend the rules on solicitation and distribution that
protect employees’ Section 7 rights in the brick and mortar world and the
balance of employee and employer rights that has been fashioned for that world
to the cyber workplace.236
This would mean employees would be protected when they use non-work time in a
cyber workplace to discuss union organizing or other topics protected by Section
7, such as wages and the lack of heat in the workplace.237
Employees would be permitted to use employer-provided e-mail for solicitation if
e-mail is part of their work areas. However, consistent with the distribution
rules in a “brick and mortar” workplace,238
employees would not be permitted to use the employer’s e-mail system to
distribute Section 7 literature via e-mail in work areas as long as the employer
has a business-use only policy that is non-discriminatorily enforced. Employees
who do not use the employer’s e-mail or other electronic communications
equipment on their jobs, and therefore do not have cyber workspaces, would not
be entitled to use the employer’s e-mail for Section 7 purposes.239
Recognizing Section 7 rights in cyber workplaces would not mean that employees
would be allowed to use work time to engage in union organizing or any personal
activities such as reading, drafting personal e-mails, or day trading. It has
been long recognized that work time belongs to the employer and this is also
true in a cyber workplace.240
Further, employers should be able to limit employee use of employer-provided
computer systems for concerted, protected communications during non-work time
when the employer has legitimate business reasons. There are some legitimate
business reasons that should lawfully permit an employer to limit employees’
electronic communications in a cyber workplace. Legitimate business reasons for
an employer to limit employees’ electronic communications in a cyber workplace
may include, but are not limited to, protecting the employer’s computer
preventing excessive burdens on the employer’s computer servers and other
protecting the employer’s computer systems from harmful computer viruses,243
and preventing interruptions of work time by employees who receive non-work
related electronic communications from other employees on their work time.244
Naturally, the employer should have the burden to prove that it has legitimate
reasons to restrict employees’ electronic solicitations in a cyber workplace.
Placing this burden on an employer is consistent with the employer’s current
burden to prove legitimate business reasons justifying restriction of
employees’ Section 7 communications under the solicitation rules for brick and
D. Employers May Violate Section 7 When They Electronically Spy On Section 7 Activity
Under the NLRA, employer surveillance of employees engaged in Section 7
activities, such as union organizing, is generally an unfair labor practice.246
Even the creation of an impression that the employer has employees under
surveillance when they are engaged in Section 7 activity violates the NLRA.247
For this reason, an employer who monitors the use of company computer equipment
by its employees, including review of employee e-mail use and Web site visits,
may violate the NLRA by conducting surveillance of employees engaged in Section
7 activities or otherwise intimidating employees in the exercise of their
Section 7 rights.248 Employers
should be careful to adopt only non-discriminatory business-use only policies
with respect to employee use of electronic technology on the job, and should
enforce policies in a non-discriminatory way.249
Further, in light of the discussion in the previous section about protection of
employee union communications, which involve Section 7 protected solicitation
and the possibility that business-use only policies may nevertheless violate
Section 7, the prudent employer should not enforce even a business-use only
policy when it appears the employee is engaging in solicitation using the
employer’s e-mail or Internet access.250
For example, if it is found that an employee has utilized her break time to chat
online with other employees about the difficulty of scheduling a vacation under
the employer’s new vacation policy, this conduct probably would be protected
A recent case illustrates novel theories that employees may use to challenge
employer surveillance of Section 7 protected, concerted activity. In Konop v.
Hawaiian Airlines, Inc., the Ninth Circuit Court of Appeals held that an
employer’s unauthorized access of an employee’s Web site may violate federal
labor laws because it constituted unlawful surveillance by interfering with
employees’ rights to engage in protected, concerted activity.251
The case is fascinating because it involves an employer’s use of the Internet
to spy on its employees who are engaged in protected activity.252
Konop, a pilot for Hawaiian Airlines, posted bulletins on his Web site that were
critical of Hawaiian Airlines, its officers, and the union that represented
Konop encouraged employees who visited the site to consider choosing an
alternative union to represent them.254 Konop’s Web
site was a secured site because Konop limited access to his site to certain
employees, excluding managers and incumbent union representatives.255
To gain access, employees were required to register on the site and to agree not
to disclose the site’s contents.256
One of Hawaiian Airlines’ managers assumed the identities of two
non-supervisory employees and accessed Konop’s Web site without disclosing
that he was a manager.257
Hawaiian Airlines’ manager then viewed the site and disclosed the contents of
the site to the incumbent union.258
A Hawaiian Airlines’ manager also threatened to sue Konop for defamation for
statements Konop made about the manager on the site.259
In Konop, the Ninth Circuit reversed a lower court ruling
dismissing the employee’s Railway Labor Act (RLA)260
claims, sending the claims back for trial on his unfair labor practice charges.261
The essence of Konop’s unfair labor practices claims is that his publication
of articles on a secure Web site was protected union organizing activity.262
The Ninth Circuit agreed that there was no dispute that Konop’s Web site
publication would ordinarily constitute protected union organizing activity
under federal labor law.263
The Ninth Circuit considered and rejected Hawaiian Airlines’ argument that
Konop forfeited the protection of federal labor law because his articles
contained malicious, defamatory, and insulting material known to be false.264
The Ninth Circuit examined Konop’s alleged statements and found Hawaiian
Airlines had failed to show, as a matter of law, that Konop’s activities were
so intolerable as to lose their protection under federal labor law.265
Konop was therefore entitled to a trial on his claims that Hawaiian Airlines’
unauthorized access to his secure Web site, disclosure of the site’s contents
to union representatives, and threat to sue him for defamatory statements on the
site violated federal labor law.266
The Ninth Circuit’s holding in Konop on his RLA claim is sound and
consistent with prior cases under both the RLA and the NLRA.267 Employer
intimidation and interference with employees’ protected concerted activity,
including union organizing activity, is a violation of federal labor law
regardless of whether it involves use of electronic technology.268
Konop is also significant because the Ninth Circuit rejected the
employer’s claim that Konop lost protection under labor laws because he
allegedly made false statements about his employer on his Web site.269
Even in cyberspace, the employee must knowingly make false statements about the
employer to lose the protection of federal labor laws.270
The major limitation of the Konop decision is the Ninth Circuit’s focus
on employer surveillance in a union organizing drive and failure to broadly
address employer surveillance of other forms of protected concerted behavior.271
In the current environment where corporate mismanagement and even fraud is all
too common, it is not difficult to imagine an employee’s Web site that
criticizes management as incompetent or fraudulent outside a union-organizing
Employee Web sites that discuss managerial incompetence or fraud outside the
union organizing context will need to be examined under the criteria for
protected concerted activity and may well qualify for federal labor law
protection when the criticism is concerted and relates to the terms and
conditions of employment. Employer surveillance of such Web sites could be
challenged as unfair labor practices.
The NLRA is an often over-looked and misunderstood source of protection
for employees in non-union workplaces. The NLRB and the courts continue to
extend NLRA rights for union employees to the non-union workplace. A recent
example is the extension of Section 7 protections for non-union employees in
workplace investigations. Consequently, planning an investigation of sexual
harassment, theft, or other employee misconduct involves new compliance
obligations under the NLRA. Developments in electronic technology offer
employers alternative investigation techniques, such as electronic monitoring
and computer forensics that do not involve employee interviews.
When drafting a workplace policy or deciding whether to discipline employees,
non-union employers need to consider the NLRA and its many protections for
non-union employees. If the policy or disciplinary action relates to group
activity by non-supervisory employees concerning their terms and conditions of
employment, the activity is probably concerted and protected. Absent use of
unlawful or unreasonable means, employees are insulated from employer discipline
for their protected, concerted activities.
Advances in electronic technology related to the workplace have stimulated an
evolution of traditional labor law principles. Managers need to be aware of the
possibility that employees who use employer-provided electronic communications
equipment on the job, thus working in cyber workplaces, may have legal rights to
use company computer equipment and systems to engage in protected concerted
activity. These rights should include the use of e-mail and Internet access. For
employees who work in cyber workplaces, Section 7 protects electronic
communications that have nothing to do with union organizing, such as
discussions of wages or new workplace policies.
A cursory reading of NLRB cases appears to support the view that managers have
the right to limit use of company computer equipment and systems to business-use
only. However, the NLRB and the courts have not directly addressed this issue.
Further, even if business-use only policies are found to be lawful, they may not
be enforced to discriminate against protected concerted activities by employees.
The NLRB should clarify some areas of ambiguity related to solicitation and
distribution rules for cyber workplaces. The NLRB should take the position that
those employees who use electronic technology on their jobs, and therefore work
in cyber workplaces, have the right to use company computer systems to solicit
other employees on non-work time about Section 7 protected matters. The NLRB
should also recognize that employers have the right to protect work time and to
restrict Section 7 uses of its computer systems during non-work time when that
use unreasonably burdens the employer. For example, unreasonable burdens on the
employer’s computer systems that may justify restricting Section 7 uses of
that equipment include reasonable restrictions to address excessive bandwidth
use, prevent computer virus infections, and prevent interruption of the work
time of other employees.
Finally, employers need to be aware that monitoring employee e-mail or Web use
is a new context for management interference with employees’ rights to engage
in protected concerted activity. Electronic monitoring of employees may be
unlawful spying on Section 7 activities, in violation of the NLRA.
While analyzing the protection of the NLRA involves many uncertainties,
one thing is certain: Managers in non-union workforces need to be particularly
cautious and pay attention to the development of traditional labor law that the
courts and the NLRB promulgate.
Questions and Answers for Non-Union Managers
About Section 7 and Traditional
and Cyber Workplaces
Identifying Protected Concerted Electronic Communications in a Non-Union
Workplace and Applying Epilepsy Foundation273
to Employee Investigations
Communications made by employees in the workplace using the employer’s
electronic communications equipment, including e-mail systems and Internet
access, fall into three general categories. For communications in Category #2
only, Section 7 constrains the actions of non-union managers with respect to
workplace policies or discipline of employees covered by the NLRA
(non-supervisory/non-management employees). However, in all three categories,
when an employer conducts an investigatory meeting of a NLRA covered
employee’s alleged misconduct, the employee will have a Section
7 right to demand that a coworker representative be present in the
meeting with the employer, provided the employee reasonably anticipates that
disciplinary action may result from the meeting.
National Labor Relations Act § 7, 29 U.S.C. § 157
(2002) [hereinafter Section 7] (Section 7 gives employees the right to engage in
“other concerted activities for the purpose of . . . mutual aid or
protection.”). These rights are not dependent on union membership. See
infra note 13.
During the Depression, the federal government adopted what is now known as the
National Labor Relations Act (NLRA), 29 U.S.C. §§151 et. seq. That statute
encourages unions by declaring it an unfair labor practice for employers to
discriminate against workers seeking to unionize and by requiring the employer
to bargain with unions that succeed in organizing that employer’s workforce.
The NLRA also protects workers who engage in “concerted activity for the
purpose of mutual aid or protection.” The statute established the National
Labor Relations Board (NLRB) to enforce its dictates.
Michael J. Zimmer et al., Cases and
Materials on Employment Discrimination 8, 9 (Richard A. Epstein et
al. eds., 2000).
Outside the union organizing context, there is
relatively little scholarship that discusses the application of Section 7 to
non-union workplaces, including those that have been impacted by electronic
technology, such as e-mail and Internet access. See infra note 8 for
references to articles that discuss the Section 7 rights of non-union employees
to engage in union organizing, including the use of electronic technology in the
workplace. This tendency to focus on union organizing has limited scholars from
addressing the many other contexts in which Section 7 rights may arise in a
non-union workplace, such as investigations of employee misconduct, workplace
policy, and employee discipline situations. This article discusses employee
communications in non-union workplaces with a primary emphasis on communications
that do not involve union organizing. It also considers the implications of
electronic technology in a Section 7 analysis of communications between
employees in a non-union workforce. See infra notes 12-13 for reference
to the few scholarly articles that provide a starting point for the discussion
of Section 7 rights in non-union workplaces outside the union organizing
Roger Leroy Miller &
Gaylord A. Jentz, Law for E-commerce
16 (2002) (“[C]yberlaw is not really a classification of law; rather, it is an
informal term used to describe how traditional classifications of law . . . are
being applied to [cyberspace].”); see also John W. Bagby, Cyberlaw:
A Forward, 39 Am. Bus. L.J. 521
(2002) (discussing the scope of the field of Cyberlaw); Edward Lee, Rules and
Standards for Cyberspace, 77 Notre
Dame L. Rev. 1275, 1281
(2002) (discussing the challenge posed by cyberspace for courts facing difficult
questions about how to apply law to cyberspace, including the challenge to apply
statutes and legal doctrine to new technology).
The term “cyber labor law” is used in this
paper to describe the developing federal labor law under the NLRA for workplaces
that use electronic technology. In addition to the NLRA, other federal labor
laws may be applicable. See, e.g., Railway Labor Act of 1926 § 151,
45 U.S.C. § 151 (2002) (covers employees of rail and airline carriers).
C. Morris, Jr., The Electronic Platform and Critical Employment Related
Issues in the New Millennium, A.L.I. – A.B.A. CONTINUING
LEGAL EDUC., SF03 A.L.I.-A.B.A.
1061, 1083-95 (July 27, 2000).
Martin H. Malin & Henry H. Perritt, Jr., The National Labor Relations Act
in Cyberspace: Union Organizing in Electronic Workplaces, 49 U.
Kan. L. Rev. 1 (2000) (proposing a framework for adapting the NLRA to
electronic workplaces when union organizing is taking place in the workplace);
Susan A. Robfogel, Electronic Communication and the NLRA: Union Access and
Employer Rights, 16 Lab. Law.
231 (2000) (discussing the use of e-mail by unions for organizing); Gwynne A.
Wilcox, Section 7 Rights of Employees and Union Access to Employees, 16 Lab.
Law. 253 (2000) (NLRA application to union organizing in an electronic
workplace); Miles Macik, Note, “You’ve Got Mail.” A Look at the
Application of the Solicitation and Distribution Rules of the National Labor
Relations Board to the Use of E-mail in Union Organization Drives, 78 U. Det.
Mercy L. Rev. 591 (2001); Frederick D. Rapone, Jr., Comment, This Is
Not Your Grandfather’s Labor Union, Or Is It? Exercising Section 7 Rights in
the Cyberspace Age, 39 Duq. L. Rev.
657 (2000) (discussing the use of e-mail to solicit support and distribute
literature in union organizing campaigns).
This article does not examine in depth the Section
7 rights of employees to organize a union or the rights of those who have chosen
to be union-represented, including the right to engage in collective bargaining
or to strike. However, it is not possible to totally ignore the application of
Section 7 to the unionizing or unionized workplace when discussing the Section 7
rights of non-union employees because many non-union employee rights have
evolved from analogous rights established in the context of union represented
employees. For example, see the discussion of the extension of Weingarten
rights to the non-union workplace infra notes 73-74.
In this article, a cyber workplace is defined as a
workplace in which employees (“cyberworkers”) use electronic technology such
as computers, e-mail, or the Web in order to do their work. See Exhibit 1 for an
application of Section 7 to traditional and cyber workplaces. Some employees
will work in a cyber workplace alongside other employees who do not. A
cyberworker is not necessarily a telecommuter, although a telecommuter who uses
e-mail or the Internet to do his or her job would be a cyberworker. An employee
does not work in a cyber workplace if his or her work does not involve use of
computer technology because such an employee has no “virtual workspace.”
For example, an accountant who communicates online with firm customers,
communicates with coworkers and managers by e-mail, and spends much of her work
time using a computer to do accounting work has a virtual workspace that is
arguably as real as the brick and mortar office building in which the accountant
also works. Her correspondence online are no less communications than
face-to-face conversations made in the office where the accountant physically
performs her work. Compare this employee to a delivery truck driver who does not
use a computer, e-mail, or the Web to do her job. The delivery truck driver has
no “virtual workplace” because none of her communications in the workplace
utilize computer technology. As technology continues to evolve, even the
delivery truck driver may have a cyber workplace. It is not a far stretch to
imagine an employer equipping its delivery truck driver employee with a cell
phone that permits the employee to check her e-mail account to obtain directions
and information needed to make deliveries. See infra notes 189-205 and
accompanying text for a discussion of cyber workplaces and their relation to
employer policies that restrict employer provided computer access to
N. Broder, Note, (NET)workers’ Rights: The NLRA and Employee Electronic
Communications, 105 Yale L.J.
1639 (1996) (discussing why the traditional legal framework of employee
communications under the NLRA does not fit workplaces where many employees are
“(net)workers” who work off-site, such as telecommuters, and the need for
revision of the rules related to union organizing for this new work context).
A number of treatises and law review articles
provide foundational analysis of the Section 7 rights of employees in the union
and non-union context; however, these treatises and articles do not discuss
recent developments related to Section 7 rights in a non-union workplace nor do
they discuss application of Section 7 in a cyber workplace. See Archibald
Cox et al., Labor
Law Cases and Materials 496 (12th ed. 1996) (“As the language of
Section 7 makes rather clear on its face, it is not necessary to have a union
sponsoring concerted activity, or anywhere on the scene, in order to have such
activity be protected as ‘concerted activities for . . . mutual aid or
protection.’”); Julius G. Getman et
al., Labor Management Relations and
the Law 86 (2d ed. 1999) (“Read literally, section 7 applies to almost
any action jointly undertaken by a group of employees. The literal language is
misleading, however, because a single employee may engage in concerted activity
and group action may fall outside the Act’s protection.”); Douglas E. Ray et al.,
Understanding Labor Law 415 (1999)
(“[G]roups of employees who are not organized into a union are protected as
long as their activity is for mutual aid and protection.”); Robert A. Gorman
& Matthew W. Finkin, The Individual and the Requirement of ‘Concert’
Under the National Labor Relations Act, 130 U.
Pa. L. Rev. 286 (1981); see also
N.L.R.B. v. Wash. Aluminum Co., 370 U.S. 9 (1962) (holding non-union
employees who engaged in a spontaneous walkout because they believed their
workplace was too cold to continue to work had engaged in protected activity and
their discharge for this behavior violated the NLRA).
U.S.C. § 157 (2002) (protecting, under Section 7, specific union related
activities such as the right to self-organize, to form, join, or assist labor
organizations, and to bargain collectively); see also N.L.R.B. v. Phoenix
Mutual Life Ins. Co., 167 F.2d 983, 988 (7th Cir. 1948); articles and treatises referenced supra note
Section 8(a)(1) of the NLRA makes it an unfair
labor practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. §
158 (2002). Section 8(a)(3) of the NLRA makes it an unfair labor practice for an
employer to discriminate against employees with regard “to hire or tenure of
employment or any term or condition of employment [in order] to encourage or
discourage membership in any labor organization.” Id.
Calvin William Sharpe, “By Any Means Necessary” – Unprotected Conduct
and Decisional Discretion Under the National Labor Relations Act, 20 Berkley
J. Emp. & Lab. L. 203 (1999) (examining NLRB decisions holding that
employees have lost the protection of Section 7).
Melissa K. Stull, Annotation, Spontaneous or Informal Activities of Employees
as “Concerted Activities, Within Meaning of §7 of National Labor Relations
Act (29 U.S.C.A. §157), 107 A.L.R. Fed.
244, n.17 (1992).
Meyers Indus., 281 N.L.R.B. 882, 885 (1986), aff’d sub nom., Prill v.
N.L.R.B., 835 F.2d 1481, 1482 (D.C. Cir. 1987) (to be concerted activity,
employees must act “with or on the authority of their fellow workers” and
not solely on their own behalf).
Activity which consists of mere talk must, in order to be protected, be talk
looking toward group action. If its only purpose is to advise an individual as
to what he could or should do without involving fellow workers or union
representation to protect or improve his own status or working position, it is
an individual, not a concerted activity, and if it looks forward to no action at
all, it is more than likely to be mere griping.
Mushroom Trans. Co. v. N.L.R.B., 330 F.2d 683, 685 (3d Cir. 1964); Goodyear Tire
& Rubber Co., 269 N.L.R.B. 881 (1984) (holding employee was not protected
when he acted individually to protest equipment he thought was unsafe by
refusing to perform the assignment when no other employees had complained); Patrick
Hardin, The Developing Labor Law 57 (3d ed. Supp. 1998).
Reef Indus., Inc., 300 N.L.R.B. 956, 957-58 (1990)
(decorating a T-shirt with a cartoon of a strange looking cross-eyed person,
suggesting a person of low intelligence, and the words: “Don’t Ask Me! Duh.
Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565
(1978) (protecting employees who distributed a newsletter encouraging other
employees to oppose state legislation that would amend the state constitution to
include right-to-work protections, even though this was political activity that
did not directly relate to their wages, hours, and other conditions of
Id.; see also Atlantic-Pacific
Constr. Co., Inc. v. N.L.R.B., 52 F.3d 260, 264 (9th Cir. 1995) (holding
employer unlawfully discharged employee for circulating a letter criticizing the
selection of a new manager); N.L.R.B. v. Henry Colder Co., 907 F.2d 765, 767
(7th Cir. 1990) (holding employer unlawfully terminated a salesman for bringing
a group complaint about mandatory sales meetings); Dearborn Big Boy No. 3, Inc.,
328 N.L.R.B. 705, 712 (1999) (holding employer unlawfully discharged an employee
after she and another employee told a third employee about their belief that the
employer refused to hire one of the employee’s children due to race
N.L.R.B. v. Mike Yurosek & Son, Inc., 53 F.3d 261, 266 (9th Cir. 1995)
(“The fact that an activity is concerted does not necessarily mean that an
employee can engage in the act with impunity.”); Sharpe, supra note 17,
Epilepsy Foundation of Northeast Ohio, No. 8-CA-28169, 8-CA-28264, 331
N.L.R.B. No. 92, 2000 WL 967066 (2000), aff’d in part, rev’d in part,
268 F.3d 1095 (D.C. Cir. 2001), cert. denied, 122 S. Ct. 2356 (June 10,
2002) (employee’s gross insubordination was not protected).
County Ophthalmology v. N.L.R.B., 81 F.3d 209, 214 (D.C. Cir. 1996) (holding
employees not protected when they engaged in concerted activity that interfered
with the employer’s operations); Can-Tex Indus. v. N.L.R.B., 683 F.2d 1183,
1185-87 (8th Cir. 1982) (holding employees not protected when they turned off
equipment essential to production in the employer’s plant in order to halt
production); see also Hardin,
supra note 24, at 73.
An employer may lawfully fire workers for refusing
to take a strike outside the workplace because this is a trespass to the
employer’s property, but may not lawfully fire employees for refusing to work.
Molon Motor and Coil Corp. v. N.L.R.B., 965 F.2d 523, 526 (7th Cir. 1992). Where
an employer failed to prove it fired the employees for refusing to leave its
property rather than refusing to work, the employer’s action violated the NLRA.
Id.; see also Hardin, supra
note 24, at 73.
Central Motors Corp., 269 N.L.R.B. 209, 219 (1984) (holding employees who
continued to refuse to return to work in a timely manner following a grievance
meeting during which their wage demands were denied were not protected by the
NLRA); Hardin, supra note
24, at 73.
Disloyalty by employees was not protected when the
employees distributed handbills containing sharp, public attacks on the
employer’s product and its business policies and the handbills did not mention
anything about the ongoing labor dispute. Jefferson Standard, 346 U.S. at
476. Such a disclosure might have alerted the public to the nature of the
dispute between the employees and their employer and explained the employees’
criticism of their employer’s business practices. Id.; see also
Montefiore Hosp. & Med. Ctr. v. N.L.R.B., 621 F.2d 510, 519 (2d Cir. 1980)
(denying protection for employees’ deceptive appeals to the public to
discourage persons from using a clinic operated by the employer).
N.L.R.B. v. Brookshire Grocery Co., 919 F.2d 359,
364 (5th Cir. 1990) (employee who surreptitiously took confidential wage
information from a supervisor’s office was not engaged in protected activity
and could be disciplined). “[A]n employer, regardless of whether it has
a written rule, has a right to expect its employees not to go into its files and
to take its business records for whatever purposes they wish, and it is not
unreasonable for an employer to consider such conduct as justifying
discipline.” Roadway Express, Inc., 271 N.L.R.B. 1238, 1239 (1984).
Simplex Wire and Cable Co., 313 N.L.R.B. 1311, 1315
(1994) (employee candor and other work rules that prohibit employees from making
false statements, as opposed to false and malicious statements, are unlawful
because they cause employees to refrain from engaging in protected activities).
Understanding how technology works is critical [for today’s managers]. The
blurring between technologists and general managers is occurring because smart
business practices are becoming increasingly technology-driven. This is not to
say that the human element is diminishing in importance. Rather, human
initiative, creativity, and interaction will always be the engines for progress
in business. It’s just that the human element has so many more channels for
innovation, if one understands the underlying technology.
Gail Honda & Kipp Martin, The
Essential Guide to Business Technology 7 (2002).
Hertz Corp., 326 N.L.R.B. 1097, 1101 (1998) (union member was not protected when
he engaged in a massive letter-writing campaign that contained deliberate untrue
statements using his home computer). But see Konop v. Hawaiian Airlines,
Inc., 302 F.3d 868, 883 (9th Cir. 2002) (federal labor law protected employee
false statements about managers on an employee-maintained Web page).
Wash. Adventist Hosp., 291 N.L.R.B. 95, 98-99 (1988) (employee used e-mail
system to break into and supplant the messages being sent to more than 100
computers in an acute care hospital, interrupting transmissions regarding the
care of patients and causing confusion of employees).
Exhibit 1 provides a list of questions and answers
for non-union managers about the application of Section 7 to employee
communications in traditional and cyber workplaces. A definition of cyber
workplace is provided at note 11.
In N.L.R.B. v. J. Weingarten, Inc.
420 U.S. 251 (1975), an employee was denied union representation in the
employer’s investigation of alleged theft. 420 U.S. at 254-55. The Supreme
Court upheld the NLRB’s decision that the employee had a Section 7 right to
have a union representative present in such an investigation. Because the
employee was denied that right, her discipline was unlawful. Id. at 257; see
also LaDawn L. Ostmann, Comment, Union Rights, No Dues: In Re Epilepsy
Foundation and the NLRB’s Extension of Weingarten Rights to Nonunion Employees,
45 St. Louis U. L.J. 1309, 1345
257-58 (an employer is not engaged in an investigatory meeting if the employer
has already made a decision to discipline the employee and is conducting the
meeting simply to inform the employee of its decision); see also NLRB v.
Certified Grocers of Cal. Ltd., 587 F.2d 449, 451 (9th Cir. 1978) (Weingarten
is not applicable if the purpose of the meeting is to deliver a disciplinary
decision and not to elicit damaging facts from the employee to further support a
decision to discipline him or to hear the employee’s side of the story).
Epilepsy Foundation of Northeast Ohio,
2000 WL 967066 (NLRB July 10, 2000); Ostmann, supra note 68, at
1331 (discussing the NLRB’s decision in Epilepsy Foundation prior to
the D.C. Circuit’s decision on appeal, which partially affirmed and partially
reversed the Board’s decision). Epilepsy Foundation has been
reported and discussed frequently in articles that summarize recent developments
in labor and employment for practitioners. See, e.g., Joel P.
Babineaux, Recent Developments: Labor and Employment Law, 49 La.
B.J. 402 (2002) (reporting that the D.C. Circuit has upheld the Weingarten
right of nonunion workers); Lisa J. Sharp, Employee Right To Representation
in Company Investigations, 48 No. 1 Prac.
Law. 19 (2002) (summarizing the cases and providing tips for managers);
James O. Castagnera et al., Labor Law Developments Affecting Termination of
Employment, Recent, Significant NLRB Decisions Involving Termination of
Employment, 18 No.
2 Term. of Emp. Bull. 1 (2002)
(discussing Epilepsy Foundation and providing insight into the political
make-up of the NLRB in the second year of the Bush administration).
at *10. On appeal, the D.C. Circuit Court reversed the NLRB’s order to
reinstate Borgs to his job with back pay and benefits, holding that the NLRB
reasonably extended Weingarten rights to non-union workplaces, but erred
when it retroactively extended Weingarten to the non-union workplace.
Epilepsy Found. v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir. 2001).
In the new millennium, many employee dismissals result from inappropriate
behavior on a company owned personal computer or computer network. Surveys of
our corporate and government clients indicate that . . . the following abuses
are common place: Conducting side businesses on corporate computers[, v]iewing
or downloading pornography from the Internet on corporate computers[, u]sing
corporate computers for personal business on corporate time[,c]onducting
competing business on corporate computers[, s]haring information with
competitors in anticipation of a job change.
New Technologies., Inc., Employee Wrongful Dismissal Lawsuit, at
http://dataforensics.com/ law11.html (last
visited Feb. 7, 2003).
Microsoft was sued for sex discrimination and
wrongful discharge by an employee who had received e-mail messages from her
supervisor. Strauss v. Microsoft Corp., 1995 WL 326492 (S.D.N.Y. 1995). The
e-mails referred to a female coworker as “Spandex Queen” and himself as
“president of the Amateur Gynecology Club.” Id. at *4. The court held
that these e-mail messages were admissible evidence and a jury could conclude
that the company’s stated reason for failing to promote the employee was not
the true reason for its actions, but rather her sex was the reason. Id. at
See Exhibit 2 for a description of the three
categories of electronic communications by employees in workplaces including
communications that are concerted and protected (Category #2). Exhibit 2 also
provides examples of situations where employees are entitled to have coworker
representatives present in investigatory interviews related to their electronic
communications in the workplace.
An employer will be liable for sexual harassment by
coworkers if it knows or should know of the harassment and fails to
investigate the allegations of harassment and take prompt and appropriate
corrective action to remedy the harassment. See Swinton v. Potomac
Corp., 270 F.3d 794, 803 (9th Cir. 2001). From two recent Supreme Court
cases, one can imply an obligation for an employer to investigate
allegations of hostile environment sexual harassment by its supervisors or
forfeit any defense to vicarious liability for their actions. See Burlington
Indus. v. Ellerth, 524 U.S. 742, 763-66 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775, 807-08 (1998). In these cases, the Supreme Court held
that an employer will be liable for hostile environment sexual harassment by
a supervisor where no tangible employment action has been taken against the
complaining employee, unless the employer is able to prove a two-part
defense. See Burlington Indus., 524 U.S. at 763-66; Faragher,
524 U.S. at 807-08. This two-part defense requires the employer to show that
it took reasonable care to prevent and promptly correct any sexually
harassing behavior and that the complaining employee unreasonably failed to
take advantage of any opportunities offered by the employer to correct or
prevent the problem. See Burlington Indus., 524 U.S. at 763-66; Faragher,
524 U.S. at 807-08. Therefore, the employer’s liability for hostile
environment sexual harassment by its supervisors turns on the adequacy of
its investigation and preventive and corrective action and whether it was
reasonable for employees to complain. See Burlington Indus., 524 U.S.
at 763-66; Faragher, 524 U.S. at 807-08.
Ostmann discusses the Board’s failure in Epilepsy
Foundation to state how an employee representative is to be chosen and
the implication that employees are free to choose whomever they want.
Ostmann, supra note 68, at 1345. Ostmann queries:
How does an employer protect the privacy of the alleged victim and the alleged
harasser if one or the other demands a coworker’s presence in the meeting? How
is an employer to handle situations such as sexual harassment where it may be
the employer’s desire to interview employees separately to avoid collusion?
Under Title VII, the employer can be held liable for not addressing a
sexual harassment complaint, but under Epilepsy Foundation, the employer
may be precluded from taking the necessary steps to remedy the problem because
it cannot discover all the facts.
discusses the employee’s freedom to choose a coworker representative and
the negative impact this may pose on the investigative process:
[A]n employee is apparently free to choose any coworker as a representative,
including someone who is personally involved in the matter under investigation,
a result that certainly could lead to “representatives” who are not only
hostile to the employer but extremely unlikely to be of any assistance to the
employer in objectively getting to the bottom of the incident at issue.
2000 WL 967066 at *29 (Brame, J., dissenting). But see Pacific Gas
& Elec. Co., 253 N.L.R.B. 1143, 1143-44 (1981) (the employee’s right
to choose a representative is limited to the extent that the coworker chosen
must be willing to be a representative and must be available. If the
coworker chosen to be a representative is not available or refuses to
participate, the employee must choose another coworker who is available and
cannot delay the interview while waiting for a desired coworker
U.S. Postal Serv., 288 N.L.R.B. 864, 866 (1988). An employee has a right to
consult privately with the coworker representative prior to the interview. Id.
Generally, this pre-interview consultation is on the employee and the
coworker’s own time so long as the employer allows adequate time for that
consultation to take place when the employees are not on duty. Id. If
this is not the case, the employer must allow the employee and his or her
coworker representative to meet privately on company time in advance of the
interview. Id.; see also Climax Molybdenum Co., 227 N.L.R.B.
1189, 1190 (1977), enf. den’d on other grounds, Climax Molybdenum
Co. v. N.L.R.B., 584 F.2d 360 (10th Cir. 1978). In Climax, the NLRB
interpreted Weingarten to require that the employer schedule
investigatory interviews at a future time and place that will allow the
employee the opportunity to consult with his representative in advance
thereof, and presumably, on his own time. 227 N.L.R.B. at 1190. Climax
held that there is no violation where the employee could have consulted, but
elected not to, with union representatives on his own time. Id.
supra notes 102-03.
Epilepsy Found., 2000 WL 967066 at *5. The employer may choose not to
hold an investigatory meeting rather than permit a coworker to attend the
meeting. Id. If the employee requests that a coworker be present at
the meeting and the employer does not want to hold a meeting with the
coworker present, the employer is free to decide not to interview the
employee and to pursue other means to resolve the matter. Id.; see also
Amoco Oil Co., 238 N.L.R.B. 551, 551-52 (1978). When an employee requests
that a coworker be present at an investigatory meeting, the employer may
lawfully advise the employee that it is not willing to permit a coworker to
be present in the meeting, but is willing to either meet with the employee
alone or forego the meeting, at the employee’s option. Id. However,
unless the employee voluntarily elects to continue the interview without
representation, the employer may not continue the interview after advising
the employee of his or her options to forego the interview or to continue
the interview without representation. U.S. Postal Serv., 241 N.L.R.B.
Ostmann, supra note 68, at 1345.
see also supra note 100.
supra note 68, at 1345.
Smyth v. Pillsbury Co., 914 F. Supp. 97,
98-99 (E.D. Pa. 1996) (employee used e-mail to communicate
unprofessional comments criticizing management of the company); Lee
B. Burgunder, Legal Aspects of Managing Technology 493-503, n.42 (2d
ed. 2001) (a recent study shows that employees at three major U.S. companies
visited Penthouse’s Web site 12,825 times in a single month in 1996); Kenneth
S. Rosenblatt, High-Technology Crime 1-3 (1996); Michael R. Anderson,
Identifying Internet Activity, Computer Forensics Goes to Cyber Space, at
http://www.forensics-intl.com/artipfl.html (last visited Oct. 29, 2002);
Mike Consol, Industrial Espionage, The Secret Agents of Fortune, The
Bus. J. (1998), at http://www.secure-data.com/art9.html (last
visited Oct. 29, 2002).
Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (2001), rev. granted and op.
superseded, 43 P.3d 587 (Cal. 2002), ___ Cal. Rptr.2d ___, 2003 WL
21488209 (Cal. June 30, 2003) (former employee obtained the employer’s
internal e-mail address list and sent thousands of messages to former
employees); Tiberino v. Spokane County, 13 P.3d 1104 (Wash. App. 2000)
(personal e-mail messages sent by a former employee that were the reason for
her discharge were found to be public records, yet were exempt from public
Blakey v. Cont’l Airlines, Inc., 751 A.2d 538 (N.J. 2000). In Blakey,
an airline captain complained of sexual harassment and a hostile working
environment based in part on gender-based messages made by coworkers on an
electronic bulletin board that the employer provided for the employees’
use by the employer. Id. at 543. The appellate court reversed the
trial court’s award of summary judgment for the employer and directed the
trial court to examine whether the electronic bulletin board located on
CompuServe was so closely related to the workplace environment that it
should be regarded as part of the workplace. Id. However, prompt
investigation and appropriate corrective action may eliminate or reduce the
employer’s liability for coworker sexual, racial or other forms of
unlawful harassment. Schwenn v. Anheuser-Busch, Inc., No.
CIVA95CV716, 1998 WL 166845 at *1 (N.D.N.Y. 1998). In Schwenn,
an employee who received sexually harassing e-mail messages from coworkers
on her office computer failed to prove hostile environment harassment or
retaliation. Id. Shortly after she complained, Anheuser-Busch
investigated the complaint and took corrective action by conducting two
employee meetings reiterating that its company sexual harassment policy
prohibited harassment via e-mail, advising employees it would monitor e-mail
messages and could discipline or discharge employees who violated the
policies. Id. In another case, an employee lost a lawsuit claiming
that the employer negligently allowed employees to use the company e-mail
system to send racially harassing e-mail. Daniels v. Worldcom Corp., No.
CIV.A.3:97-CV-0721-P, 1998 WL 91261 at *4 (N.D. Tex. 1998). The court in Daniels
concluded that the employer was not negligent because upon learning of
misuse of its e-mail system, the employer took prompt corrective action in
the form of organizing meetings to discuss proper use of the e-mail system
and disciplining the employees who had improperly used the e-mail system. Id.
Burgunder, supra note
109, at 493.
Shurgard Storage Ctrs., Inc. v. Safeguard Self
Storage, Inc., 119 F. Supp. 2d 1121, 1123 (W.D. Wash. 2000) (employee with
full access to Safeguard’s confidential business plans, expansion plans,
and other trade secrets e-mailed this information to Shurgard, then quit his
job and began working for Shurgard).
A survey conducted in 2001 by the American
Management Association reports that, since 1997, the number of employers
that actively electronically monitor their employees in the workplace has
increased from 35.3% to 77.7%. The electronic monitoring reported by
respondents included monitoring Internet connections (Internet monitoring
was reported beginning in 2000), storing and reviewing e-mail messages,
storing and reviewing computer files, video recording employees’ job
performance, recording and reviewing telephone conversations, and storing
and reviewing voice mail messages. 2001 AMA Survey Workplace Monitoring
& Surveillance, Am. Mgmt. Ass’n (AMA), at http://www..amanet.org/research/
pdfs/ems_short2001.pdf (last visited Feb. 7, 2003) (on file with author) and
2001 Workplace Monitoring and Surveillance: Policies and Practices at
index.htm (last visited Feb. 7, 2003) (on file with author) [hereinafter
2001 AMA Surveys]; see also Lisa Guernsey, Keeping Watch Over
Instant Messages, N.Y. Times,
Apr. 15, 2002, at C4 (a company’s computer surveillance system is able to
pick up instant messages sent between employees, including employees using
less than professional language).
AMA Surveys, supra note 114; see also Burgunder,
supra note 109, at 491-503; Jannine
S. Hiller & ronnie Cohen, Internet Law and Policy 90-95 (2002)
(employers may install software to monitor e-mail use and inappropriate use
of the Internet by employees).
New Technologies, Inc. describes security software
and tools for Internet audits, including a form of software that can be used
by corporations to conduct computer monitoring, Net Threat Analyzer:
Internet Threat Identification Software, at http://www.forensics-intl.com/nta.html
(last visited Feb. 7, 2003) (“Net Threat Analyzer software relies upon
computer artificial intelligence logic to quickly identify patterns of
computer data tied to Internet E-mail communications, Internet Browsing
activity and the download of files from Internet sites.”).
New Techs., Inc., Computer Forensics Defined,
(last visited Feb. 7, 2003) (“The term ‘Computer Forensics’ was coined
back in 1991 in the first training session held by the International
Association of Computer Specialists . . . . Computer Forensics deals with
the preservation, identification, extraction and documentation of computer
evidence.”); see also New Techs., Inc., Employee Wrongful
Dismissal Lawsuits, at http://www.4incidentresponse.com/cons18.html
(last visited Feb. 7, 2003). This article reports:
A woman employed by a large defense contractor accused her supervisor of
sexually harassing her. She was fired from her job for “poor performance.”
She subsequently sued her ex-boss and the former employer. Recovery and analysis
of electronic messages [enabled the employer to establish that the employee’s
claims of harassment were valid and the employee was reinstated to her job].
notes 69-70 and accompanying text. Much has been written about employee
privacy rights in the workplace that are derived from laws outside the
context of federal labor law, such as constitutional and tort privacy
theories. See, e.g., Paul E. Hash & Christina M. Ibrahim, E-mail,
Electronic Monitoring and Employee Privacy, 373 Tex.
L. Rev. 893 (1995); Amy Rogers, You Got Mail But Your Employer
Does Too: Electronic Communication and Privacy in the 21st Century Workplace,
5 J. Tech. L. & Pol’y 1
(2000); Lawrence E. Rothstein, Privacy or Dignity: Electronic Monitoring
in the Workplace, 19 N.Y.L. Sch.
J. Int’l & Comp. L. 379 (2000); David Neil King, Note, Privacy
Issues in the Private-Sector Workplace: Protection from Electronic
Surveillance and the Emerging Privacy Gap, 67 S.
Cal. L. Rev. 441 (1994). As these articles illustrate, there are many
legal theories related to privacy rights of employees in addition to federal
labor law. Non-labor law theories are beyond the scope of this paper.
Even in this situation, electronic technology may
aid the employer in the investigatory process. See, e.g., Knox v.
Indiana, 93 F.3d 1327, 1330-31 (7th Cir. 1996). In Knox, a female
correctional officer sued for sexual harassment by a lead captain based on
several e-mail messages he sent to her asking for sex. Upon investigation,
the lead captain initially denied any knowledge of why the female employee
“would have filed a complaint against him, but his tune changed when he
found out that the investigator had copies of the e-mails he had sent to
[the employee].” Id. In Knox, the lead captain subsequently
admitted understanding how his behavior could have been interpreted as
sexual harassment and was disciplined. Id. See generally John Hancock
Mutual Life Ins. Co., No. CIV.A.00-12143, 2002 WL 974676 at *1 (D. Mass.
2002) (employer read employees’ e-mail on employer’s system and
determined employees had violated its policy by sending and receiving
sexually explicit e-mail); Fraser v. Nationwide Mut.
Ins. Co., 135 F. Supp. 2d 623, 631 (E.D. Pa. 2001)
(employer searched the workplace e-mail of one of its insurance agents and
found evidence the insurance agent had criticized its business practices in
a letter to a competitor).
29 U.S.C. § 158(1). It is an unfair labor
practice, commonly referred to as an “8(a)(1),” for an employer to
discipline an employee for activity protected under Section 7. Id.
Such discipline constitutes interference, restraint, or coercion of
employees in the exercise of rights guaranteed under Section 7. Id. A
violation of Section 8(a)(1) does not require proof that the employer
intended to interfere with the employee’s Section 7 rights:
Concerted activity may be protected from employer discipline even if the
employer does not know or does not understand the legal significance of the
activity (i.e. that it is protected), provided that (1) the employer is aware of
the concerted nature of the activity, (2) the conduct is protected by the Act [NLRA],
and (3) the adverse employment action is motivated by the protected activity.
supra note 24, at 9 (citations omitted).
Timekeeping Sys., Inc., 323 N.L.R.B. 244 (1997);
see supra notes 38-39 and accompanying text for discussion of Section 7
protection for employee communications with persons outside the workplace.
See supra notes
24-26 and accompanying text.
268 F.3d at 1103-05 (rejection of supervision constituted unprotected
268 F.3d at 1103 (citing N.L.R.B. v. Oakes Mach. Corp., 897 F.2d 84, 89
(2d Cir. 1990)). In N.L.R.B. v. Oakes Machine Co., the employer
unlawfully fired an employee for drafting and sending an anonymous letter on
behalf of employees who complained about the company president’s policy
that required employees to spend large amounts of time on his personal
projects to the detriment of company profits. Id. The policy resulted
in lower incentive bonus payments to employees because the payments were
based on company profitability. Id.
268 F.3d at 1103-05.
see also Epilepsy Found., 2000 WL 967066 at *1 n.4 and
268 F.3d at 1103.
1105 (citations omitted).
Timekeeping Sys., Inc., 323 N.L.R.B. 244
244-45. The employee’s e-mail communications pointed out to other
employees that the proposed vacation policy would not be a benefit to
employees because it would result in the same number of vacation days and
less flexibility in their use. Id. The employee’s use of flippant
and rather grating language in the e-mail did not result in loss of Section
7 protection. Id.
at 247, 249. The Board found that the tone of the employee’s e-mail
message played a dominant role in the reason for his discharge in light of
testimony by the employer that the employee’s e-mail message showed
failure to treat others with courtesy and respect. Id. The Board
found that the employee’s communication had “arrogant overtones,” but
that the message was not couched in language sufficiently serious to warrant
loss of protection under Section 7. Id.
at 248-49; see also Sherri Buri McDonald, Symantec Posts Notice As
Part of Deal With Fired Worker, Eugene
Register-Guard, Aug. 16, 2002, at 8C. McDonald reports that Symantec,
a non-union employer, settled a complaint with the NLRB by an employee who
alleged Symantec fired her for protected concerted activity related to her
use of Symantec’s e-mail system. Id. The former employee sent
e-mail to coworkers objecting to Symantec’s plan to outsource work and
attempting to organize workers to protest this plan. Id. Without
admitting any violation of labor law, Symantec agreed to post a notice to
employees on message boards at its facility pledging not to interfere with
workers rights to communicate with each other about terms and conditions of
employment. Id. The notice emphasized that employees have broad
rights to use company e-mail systems to discuss working conditions. Id.
N.L.R.B. General Counsel Feinstein’s Report on Advice, Appeal, and Section
10J Cases Released Nov. 12, 1999, 212 Daily Lab. Rep. E-1 (BNA) (Nov. 3,
1999). An internal memo was posted on a union Web page by an employee who
was also the president of the union representing the company’s employees. Id.
The employer lawfully disciplined the employee for posting internal company
documents that were “self-evidently” not intended to be disseminated to
the public. Id. The memo was written by one manager to the
company’s president and had a heading on it that specified that it was
“Internal Correspondence.” Id.
Caval Tool Div., No. 34-CA-8702, 331 N.L.R.B. No. 101, 2000 WL 1054862 (N.L.R.B.
July 25, 2000), enforced, 262 F.3d 184 (2d Cir. 2001) (employer
maintained a rule that was unlawful on its face because it required
employees to get prior approval from their employer’s human resource
department before engaging in protected concerted activity); Hammary Mfg.
Corp., 265 N.L.R.B. 57, 58 (1982) (discriminatory application of a work rule
violates Section 7).
Handicabs, Inc. v. N.L.R.B., 95 F.3d 681, 685 (8th
Cir. 1996) (employer unlawfully prohibited all employee discussions about
working conditions with clients); Kinder-Care Learning Ctrs., Inc., 299 N.L.R.B.
1171, 1172 (1990) (employer’s policy was facially invalid because it
prohibited protected concerted activity and required pre-approval of protected
In Lafayette Park Hotel, 326 N.L.R.B. 824
(1998), the NLRB held that a broad confidentiality rule set out in an
employee handbook that prohibited disclosure of “hotel-private information
to employees or other individuals or entities that are not authorized to
receive that information” did not violate Section 7, at least where it had
not been used to discipline employees for Section 7 protected behavior.
Lafayette Park Hotel, 326 NLRB. 824, 825 (1998), enforced, 203 F.3d
52 (D.C. Cir. 1999); see also K-Mart, No. 32-CA-15575, 32 CA-15662,
32-CA-15662-2, 330 N.L.R.B. No. 29, 1999 WL 114698 (1999).
Lafayette Park Hotel,
326 N.L.R.B. at 825.
299 N.L.R.B. at 1171, 1176.
See Epilepsy Found.,
2000 WL 967066 at *10-11; see also Elston Elec. Corp., 292 N.L.R.B.
510, 511 (1989) (a general rule prohibiting discussion of wages among
employees is unlawful in the absence of a substantial business
justification); N.L.R.B. v. Main St. Terrace Care Ctr., 218 F.3d 531,
537 (6th Cir. 2000) (appellate court enforced the NLRB’s determination
that employer violated Section 7 by telling employees not to discuss their
wages with other employees); Jeannette Corp. v. N.L.R.B., 532 F.2d 916, 919
(3d Cir. 1976) (possibility that ordinary speech and discussion over wages
on an employee’s own time may cause jealousies and strife among employees
is not a justifiable reason to inhibit the opportunity for an employee to
exercise Section 7 rights); IRIS U.S.A., Inc., No. ES 32CA-1763-1, 336
N.L.R.B. No. 98, 2001 WL 1830731 (2001) (employer’s handbook that
prohibited employees from communicating with other employees about wages and
conditions of employment was unlawful in the absence of a legitimate
business justification for the rule).
See Epilepsy Found.,
2000 WL 967066 at nn.5, 13. Employee Borgs was called into a meeting
with managers and interrogated about his discussions about salary
information with other employees. He was also reprimanded at that meeting
for having the salary discussions. Id. The ALJ found that this
discipline violated Section 7, a finding that neither the NLRB nor the D.C.
Circuit set aside. Id.; see also 268 F.3d 1095.
id. at *10-11; see also Kinder-Care, 299 N.L.R.B. at 1171,
Supervisors are excluded from the definition of
employees under the NLRA. 29 U.S.C. § 152(3) (2002). However, employers must be
cautious not to discipline supervisors or managers for refusing to discipline
employees when the discipline would violate the employees’ Section 7 rights.
In such cases, the supervisors or managers may be protected from discipline
under the NLRA based on rights derivative of the employees’ Section 7 rights. See
Terry A. Bethel, The NLRB and the Discharge of Supervisors: Parker-Robb
Brings Questionable Reform, 54 U. Colo.
L. Rev. 1 (1982).
Phoenix Transit Sys., No. 28-CA-15177, 337 N.L.R.B.
No. 78, 2002 WL 991667 at *3 (N.L.R.B. May 10, 2002).
The employer’s rule in Phoenix Transit System
was overly broad because it forbids employees from speaking among themselves
or to third parties about employee sexual harassment complaints. Id.
The Board did not rule on whether an employer could have a rule requiring
employees to speak confidentially with the employer in the course of an
investigation into alleged sexual harassment. Id. But see In
Desert Palace, Inc., No. 28-CA-14240, 336 N.L.R.B. No. 19, 2001 WL 1187951
(2001) (NLRB held that an employer did not violate Section 8(a)(1) by
maintaining and enforcing a confidentiality rule during an ongoing
investigation of alleged illegal drug activity).
Phoenix Transit Sys.,
2002 WL 991667 at *1.
Timekeeping Sys., 323 N.L.R.B. 244; see also Broder, supra
note 12, at 1640 (for (net)workers who do not work on the employer’s site,
electronic communications may be the only avenue for contact with coworkers
about wages, hours, and other terms and conditions of employment).
Phoenix Transit Sys., 2002
WL 991667 at *3.
see also Timekeeping Sys., 323 N.L.R.B. 244.
Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803 (1945). Republic
Aviation Corp. had a no-solicitation rule adopted prior to the beginning of
any union organizing and terminated an employee for violating the
no-solicitation rule when he handed out union cards during non-work time. Id.
This no-solicitation rule violated Section 7 because it was an
“unreasonable impediment” to union organizing and not justified by
special business circumstances related to production and efficiency. Id.
An employee has a right to use non-work time for activities protected by
Section 7 even when on the employer’s property, and this right is balanced
with the employer’s property and managerial rights. Id.
see also Rapone, supra note 8, at 667.
The employer may prohibit employees from orally
soliciting other employees in support of union organizing when the activity
takes place on the work time of either the employee doing the solicitation
or the employee being solicited. See Republic Aviation Corp., 324
U.S. at 803 (“Work time is for work.”) (quoting Peyton Packing Co., 49
N.L.R.B. 828, 843).
Employees may hand out union cards and ask coworkers to sign those cards in
work areas. Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 616 (1962). The right
to solicit union organizing cards is a fundamental Section 7 right that the
NLRB has classified as solicitation rather than distribution. Id.
This is so even though union cards are writings and there is a potential for
litter in work areas from this behavior. Id.
Stoddard-Quirk, 138 N.L.R.B. at 615-16.
But see id.
(union cards are covered by the solicitation rules despite the fact that
they are generally pre-printed paper similar to leaflets and create the
potential for paper litter in the workplace).
id. at 620.
In re TeleTech
Holdings, Inc., No. 3-CA-21862, 333 N.L.R.B. No. 56, 2001 WL 209470 at *2 (N.L.R.B.
Feb. 27, 2001); see also Our Way, Inc., 268 N.L.R.B. 394 (1983).
2001 WL 209470 at *2.
Stoddard-Quirk, 138 N.L.R.B. at 616.
2001 WL 209470 at *3; see also Ichikoh Mfg., Inc., 312 N.L.R.B. 1022
(1993), enforced, 41 F.3d 1507 (6th Cir. 1994).
TeleTech Holdings, 2001
WL 209470 at *2; see also Mercury Marine-Div. of Brunswick
Corp., 282 N.L.R.B. 794, 795 (1987).
E.I. Du Pont de Nemours & Co., 311 N.L.R.B. at 897-98 (employer policy that
prohibited employee access to e-mail for union purposes while allowing
employee e-mail use for other non-work purposes violated the NLRA).
In re Adtranz,
No. 32-CA-17172, 32-RM-759, 32-RC-4540, 331 N.L.R.B. No. 40, 2000 WL 739735
at *1, *6 (N.L.R.B. May 31, 2000), vacated in part, 253 F.3d
19 (D.C. Cir. 2001).
Discussion of the rights of non-employees to access
the workplace, including a cyber workplace, for the purpose of union organizing,
is beyond the scope of this paper. Federal labor laws permit employers wide
latitude to exclude non-employee union organizers from company property. See Lechmere,
Inc. v. N.L.R.B., 502 U.S. 527, 533-34 (1992).
See Exhibit 1 for an overview of the application of
Section 7 to traditional and cyber workplaces, including questions and
answers for managers about the adoption and enforcement of business-use only
policies for employer-provided electronic communications equipment.
Robfogel, supra note 8, at 235-37; Allegra Kirsten Weiner, Note, Business-only
E-Mail Policies in the Labor Organizing Context: It Is Time to Recognize
Employee and Employer Rights, 52 Fed.
Comm. L.J. 777 (2000).
2000 WL 739735 at *1, *6 (reviewing the findings of the ALJ, the NLRB
affirmed this part of the case without modification. On appeal, the D.C.
Circuit affirmed this part of the decision.). Adtranz, 253 F.3d 19.
2000 WL 739735 at *6 (emphasis added).
Gallup, Inc., No. E16-CA-20442, 334 N.L.R.B. No.
52, 2001 WL 1219580 (N.L.R.B. June 27, 2001).
at *25, n.20.
N.L.R.B. General Counsel’s Memo. (“GCM”) re Pratt and Whitney, Nos.
12-CA-18446, 12 CA-18722, 12 CA-18745, and 12-CA-18863, 1998 WL 1112978
(Feb. 23, 1998); GCM re TU Elec., No. 16-CA-19810, 1999 WL 33221181 (Oct.
18, 1999); GCM re TU Co., No. 16 CA-20121-2, 2000 WL 1741877 (Jan. 28,
2000). In these Advice Memorandums, the General Counsel found business-use
only policies covering e-mail, Intranet and Internet to be facially unlawful
because they were too broad and prohibited employees from sending messages
that would otherwise be protected as “solicitation” under Section 7.
Computers in these workplaces constituted work areas and the employer’s
policies were invalid because they restricted employee “solicitation.”
An employer may not prohibit employees from engaging in solicitation, in
this case sending e-mail messages that constitute solicitation when there is
no evidence that the prohibition is necessary in order to maintain
production or discipline. But cf. GCM re Nat’l TechTeam, No.
16-CA-20176, 2000 WL 1741874 (Apr. 11, 2000). In National TechTeam,
the General Counsel found that the employer did not violate Section 7 when
it disciplined an employee for generating a piece of pro-union literature on
the employer’s computer and printer. Id. The General Counsel
reasoned that the employee’s misuse of computer resources to create
documents during time that the employee should have been working is not
2000 WL 739735 at *6; Gallup, 2001 WL 1219580 at *1.
2001 WL 1219580 at *1-3.
2000 WL 739735 at *7.
See supra notes
172-73 and accompanying text.
Broder, supra note 12, at 1662-64. Broder discusses whether e-mail
and other forms of electronic communications should be covered by the
solicitation or the distribution rules because they are more like speech
than distribution of literature: “Electronic communication shares
qualities of both written and spoken communication. . . .‘Chat’ and
real-time conferencing share the hallmark ephemerality and simultaneity of
oral solicitation . . . .[E]-mail — is enduring, yet it too shares many
qualities of speech.” Id. She posits that e-mail and other
electronic communications look like speech because they promote responsive
interchanges, not just an exchange of position papers. Id. On the
other hand, the author states that e-mail resembles paper distribution in
that the recipient may postpone reading it after receipt. Id.
Wilcox, supra note 8, at 254-56.
and discussion of cyber workplaces, infra note 11; see also
Exhibit 1, Question 6 for a discussion of protected solicitation by
751 A.2d at 543; see also Lee, supra note 5, at 1277-78
(proposing a framework for courts to consider when analyzing whether a
narrow/tentative approach or a broad/definitive approach is appropriate for
deciding cases involving cyberspace).
751 A.2d at 543.
v. Microsoft Corp., No. 05-97-00824-CV, 1999 WL 339015 (Tex. App. 1999); see
also, Mitchell Waldman, Annotation, Expectations of Privacy in
Internet Communications, 92 A.L.R.5th
15, § 3c (2001).
1999 WL 339015 at *1.
751 A.2d at 543; McLaren, 1999 WL 339015 at *1; see also
Waldman, supra note 227, at 15, § 3c.
notes 172-75 and accompanying text.
But cf. supra
notes 187-90 and accompanying text.
See Exhibit 1 for a summary of the application of
Section 7 to traditional and cyber workplaces including application of
Section 7 to business-only policies for electronic communications equipment
provided by the employer and the impact of such policies on the rights of
employees to engage in solicitation and distribution. Question 6, Exhibit 1,
asks: Should the solicitation and distribution rules apply to electronic
communications made by an employee? When the employee works in a cyber
workplace, the answer to this question should be yes.
supra note 8, at 236-40; supra notes 187-88 and accompanying
notes 172-76 and accompanying text.
See supra note
11 (providing a definition of cyber workplace and an example of an employee
who does not have a cyber workplace because he or she does not use any
electronic technology to perform her job).
See Republic Aviation Corp.,
324 U.S. 793, at n.10.
Burgunder, supra note
109, at 494 (discussing the employer’s legitimate concerns related to employee
personal use of the employer’s bandwidth).
[A] problem [with employees’ personal use of employer provided Internet
access] involves the sheer amount of a company’s computer bandwidth capacity
that employees sometimes utilize for personal reasons. This may be particularly
true when company resources are used for downloading large music and video
files, or for engaging in frequent securities day-trading.
2002 Computer Crime and Security Survey, Computer Sec. Inst., available
(visited Feb. 7, 2002) (on
file with author). U.S. companies and government agencies report losing more
money from theft of proprietary information than any other type of attack on
their computer systems, according to the seventh annual joint FBI/Computer
Security Institute (CSI) Computer Crime and Security Survey released April
2002. Id. Viruses remain the most common type of cyberattack. Id.
The total financial loss from viruses increased from $45.3 million to $49.9
million, with an increase in the average loss from $243,800 to $283,000. Id.
See Intel Corp.,
114 Cal. Rptr. 2d at 246-47, rev. granted and op. superseded, 43 P.3d
587 (Cal. 2002). ___ Cal.Rptr.2d ___, 2003 WL 21488209 (Cal. June 30, 2003).
Hamidi, a former employee of Intel, repeatedly flooded Intel’s internal
e-mail system with messages related to his employment litigation against
Intel and other matters. Id. On six occasions he sent e-mails to
between 8,000 and 35,000 employees. Id. Hamidi sent these e-mails
over the Internet to an e-mail server using Intel’s private list of e-mail
addresses for its employees. Id. However, the California Supreme
Court held the tort of trespass to chattels did not encompass electronic
communications that neither damaged the recipient computer system nor
impaired its functioning. Id. at *1.
See supra notes
179-85 and accompanying text.
Auto. Plastic Tech., Inc., 313 N.L.R.B. 462, 466-67 (1993) (surveillance of
employees distributing union literature was unlawful); see also Brent
G. Tabacchi, Note, Randell Warehouse of Arizona: Surveillance, Coercion,
and the Unionization Campaign, 2001 U.
Ill. L. Rev. 911 (2001) (discussing employer surveillance in union
Avondale Indus., Inc., 329 N.L.R.B. 1064 (1999) (NLRB ordered the employer
to cease and desist creating the impression that its employees’ activities
on behalf of the union were under its surveillance).
Michael P. Maslanka & Theresa M. Gregen, Employment Law in a Virtual
Workplace, 64 Tex. B. J.
476 (2001). See also Charles E. Frayer, Employee Privacy and
Internet Monitoring: Balancing Workers’ Rights and Dignity with Legitimate
Management Interests, 47 Bus. Law.
857, 864 (2002). According to Frayer: “[I]t may be possible for two or
more private sector, non-union employees to claim mutual protection from
Internet monitoring under the NLRA by asserting that such monitoring has any
of the effects expressly prohibited under section 8(a)(1). Unfortunately, no
such case has yet been reported.” Id. at 864.
See supra note
144 and accompanying text.
notes 186-91, 210-21, and accompanying text.
Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th
Cir. 2002). In addition to Railway Labor Act (RLA) claims, Konop also
claimed that the employer’s use of electronic technology violated the
Electronic Communications Privacy Act, which encompasses the Wiretap Act, 18
U.S.C. §§ 2510-2520 (2002) and the Stored Communications Act, 18 U.S.C.
§§ 2701-2710 (2002). The employee claimed that the employer violated the
Electronic Communications Privacy Act by viewing his secure Web site under
false pretenses. In its initial opinion, which the Ninth Circuit later
withdrew, the Ninth Circuit reversed the district court’s dismissal on
summary judgment of the plaintiff’s claims under the RLA as well as his
claims under the Wiretap Act and the Stored Communications Act. Konop,
236 F.3d 1035 (9th Cir. 2001), withdrawn, 262 F.3d 972 (9th Cir.
2001). The Ninth Circuit subsequently reversed its holding that unauthorized
access of an employee’s Web site under false pretences was an
“interception” of “electronic communications” that violated the Wiretap
Act. Konop, 302 F.3d at 878. The Ninth Circuit’s revised opinion
did not change its holdings relative to Konop’s claims under the Stored
Communications Act or the RLA and these claims were remanded for trial. Id.
at 880-86. A thorough discussion of the Electronic Communications
Privacy Act as it relates to these claims is beyond the scope of this paper.
F.3d at 872-74.
Konop allegedly published the following false
statements on his Web site:
(1) Nobles [president of Hawaiian Airlines] does his “dirty work
¼ like the Nazis during World War II”; (2)
“Soviet Negotiating Style Essential to Nobles Plan!”; (3) Nobles is “one
incompetent at the top”; (4) Nobles “has little skill and little ability
In fact, with as few skills as Nobles possesses, it is difficult to imagine how
he got this far”; and (5) “Nobles Suspected in Fraud!” and “Hawaiian Air
president, Bruce Nobles, is the prime suspect in an alleged fraud which took
place in 1991.”
Railway Labor Act of 1926 § 152, 45 U.S.C. §§
151-188 (2002). Section 152 of the RLA prohibits “interference, influence,
or coercion by either party over the designation of representatives by the
other.” Id. The RLA also makes it “unlawful for any carrier to
interfere in any way with the organization of its employees, or to use the
funds of the carrier in maintaining or assisting or contributing to any
labor organization, labor representative, or other agency of collective
bargaining.” Id. The RLA is a separate federal labor law from the
NLRA. The RLA is applicable to employees of railway and airline carriers. Id.
302 F.3d at 884-86.
884-86. The fact that this is a case under the RLA as opposed to the NLA is
not significant because courts frequently use decisions under one of these
federal laws to interpret the other. Id. at 882; see also Bhd.
of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383 (1969);
Daniel M. Katz et al., A Commentary on Professor Morris’s Comparison of
Discrimination for Union Activity Under the NLRA and RLA, 3 Employee
Rts. & Emp. Pol’y J. 305 (1999); Charles J. Morris, A Tale
of Two Statutes: Discrimination for Union Activity Under the NLRA and RLA,
2 Employee Rts. & Emp. Pol’y J.
supra note 247, at 863-64 and accompanying text.
F.3d at 883; see also Nat’l Ass’n of Letter Carriers v. Austin,
418 U.S. 264, 281 (1974); Linn v. United Plant Guard Workers of Amer., Local
114, 383 U.S. 53, 61 (1966) (protection under the NLRA is maintained “even
though the [employee’s] statements are erroneous and defame one of the
parties to the dispute” as long as the employee does not intentionally
circulate defamatory information known to be false).
302 F.3d at 883.
Squier Distrib. v. Teamsters Local 7, 801 F.2d 238, 241 (6th Cir. 1986)
(termination of employees who provided affidavits to a sheriff stating the
employer’s president had embezzled funds from the employer violated the
employees’ Section 7 rights).
2000 WL 967066 (2000).
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028