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Oregon State University College of Business

Labor Law For Managers Of Non-Union Employees 
In Traditional And Cyber Workplaces

 By Nancy J. King    email
Oregon State University College of Business

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.

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 I.  Introduction

    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 purposes.9  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 non-union employees.

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 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 union-related activity.15 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 labor practice.16

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 activity. 24 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 personal complaint.25 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 tenth-grade education.28 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 union-related.37 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 unprotected.50 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 recklessly.57 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 communications equipment.

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 misconduct.68 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 “investigatory interview.”69 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 rights).71 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 written.78 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 Section 7?

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 alleged misconduct.

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 meeting.103 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 interviewed.105  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 investigations.109  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 materials.115  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 representation.119 However, 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 interviewing process.

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 unlawful reason.131

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 policy.133 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 unlawful.149 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 centers.152 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 care centers.153 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 Section 7.155 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 issues.157

Wage secrecy policies that require employees to keep their wages secret, or otherwise prohibit the discussion of wages among employees, also violate the NLRA.158 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 harassment complaints.165

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 technology.166 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 matters.170 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 areas.175 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 areas.176 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 discarded literature.178

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 enforced.181 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 discriminatorily enforced.190 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 drive.204 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 employees.208 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 difficult question.213 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 physical workplace.230

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 bandwidth,241 preventing excessive burdens on the employer’s computer servers and other equipment,242 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 mortar workplaces.245

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 solicitation.

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 employees.253 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 context.272 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.

IV.  Conclusion

    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.

Exhibit 1

Questions and Answers for Non-Union Managers  About Section 7 and Traditional and Cyber Workplaces

 

Traditional Workplaces

Cyber Workplaces

1. Who is an employee in a non-union workplace protected by Section 7? (See definition of employee, 18 U.S.C. 157).

A non-supervisory/non-management employee in a private sector workplace.

A non-supervisory/non-management employee in a private sector workplace.

2. Does the employee use electronic communications equipment provided by the employer, including e-mail or Internet access, on the job? (See supra note 11 and accompanying text).

NO, the employee is not a cyber worker and has no cyber workplace. This is true even if some of his or her coworkers are cyber workers.

YES, the use of electronic communications on the job is what determines whether the employee is a cyber worker in a cyber workplace.

3. Does an employee have a right to access the employer’s electronic communications equipment if the employee does not use it on his or her job? (29 U.S.C. 157; see supra notes 8, 13 and accompanying text).

NO, nothing in Section 7 requires this. Once the employer grants an employee access to some form of electronic communication, the employee is a Cyber worker with a Cyber Workplace (see column to the right).

NO, nothing in Section 7 requires this. The employer could grant the employee access to some forms of electronic equipment, but not others (for example, give the employee access to e-mail on an Intranet, but not Web access via an Internet connection).

4. May the employer have a business-use only policy that precludes any use of electronic communications equipment by employees for personal or Section 7 purposes? (See supra notes 186-221 and accompanying text).

N/A

The NLRB and Courts have not answered definitively. The answer should be “no.” Because the employee works in a cyber workplace, such a policy makes Section 7 communications “off limits” in the workplace. This is arguably an unlawful interference with the employee’s right to communicate about Section 7 matters in the workplace.

5. May the employer enforce a discriminatory business-use only policy that prohibits any use of electronic communications equipment by employees for Section 7 purposes while making exceptions for purely personal communications? (See supra notes 186-221 and accompanying text).

NO, Section 7 is violated when an employer enforces a work rule in a manner that discriminates against Section 7 protected concerted behaviors.

NO, Section 7 is violated when an employer enforces a work rule in a manner that discriminates against Section 7 protected concerted behaviors.

6. Should the solicitation and distribution rules apply to electronic communications made by or to this employee? (See supra notes 236-45 and accompanying text).

NO, because the employee has no cyber workplace, Section 7 would not provide electronic solicitation or distribution rights. In other words, Section 7 would not entitle an employee to access or use the employer’s electronics communications equipment when the employee does not otherwise use the equipment on the job.

YES, this employee should have the right to make electronic solicitations for Section 7 purposes in the workplace including a cyber workplace on breaks or other non-work time, absent business justification to restrict this right. The employer should be allowed to prohibit electronic “distribu-tions” in all work areas, including cyber work places.

Exhibit 2

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.

 

Category #1

Category #2

Category #3

Communications About Personal Matters—

Not Protected by Section 7

Communications that are Concerted and for the Mutual Aid & Protection of Employees—

Protected by Section 7

Communications that are Job-Related but not Concerted—

Not Protected by Section 7

Example A: Employee e-mails a friend about plans to meet for dinner during the upcoming weekend.

Example C: Employee e-mails a coworker about the lack of heat in the office or criticizing the employer’s new vacation policy.

Example E: Employee e-mails a manager to complain that his supervisor is incompetent and to ask the manager to fire the supervisor.

Example B: Employee uses the employer’s Internet Access to visit a Web site to apply for a job with another company or to download and view pornography. 

Example D: Employee uses the employer’s Internet Access to visit the Web site of the state human rights commission to find out about filing a discrimination complaint on behalf of himself and several coworkers who believe they are experiencing sex harassment in the workplace.

Example F: Employee uses the employer’s Internet Access to visit a vendor’s Web site. While on the site, the employee makes an angry comment online about the vendor’s inability to fill an order as requested. As a result, the vendor discontinues a favorable relationship with the employer.

Section 7 will not restrict the employer’s discipline of the employee for behavior described in Examples A and B because it is neither concerted nor protected under Section 7. (See 18 U.S.C. 157; see supra notes 22, 24, 42-47 and accompanying text).

Section 7 will restrict the employer’s discipline of the employee for behavior described in Examples C and D because the employee’s behavior is concerted and relates to matters of mutual aid and protection. Section 7 protection may be lost if the employee acts in an unreasonable or unlawful way. (See Section II B). 

Section 7 will not restrict the employer’s discipline of the employee for behavior described in Examples E and F because it is neither concerted nor protected under Section 7. Individual gripes by non-union workers about the workplace are not concerted under Section 7. (See supra notes 24-26 and accompanying text).

The employee has a Section 7 right to demand a coworker representative in an investigatory meeting with the employer to discuss behavior described in Examples A or B. (See Epilepsy Found.)

The employee has a Section 7 right to demand a coworker representative in an investigatory meeting with the employer to discuss behavior described in Examples C or D. (See Epilepsy Found.)

The employee has a Section 7 right to demand a coworker representative in an investigatory meeting with the employer to discuss behavior described in Examples E or F. (See Epilepsy Found.)



  13   Assistant Professor of Business Law, College of Business, Oregon State University, Corvallis, Oregon.

    1   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).

   2   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 context.

   3   See infra notes 73-74 and accompanying text.

   4   See infra notes 133-39 and accompanying text.

   5   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).

   6   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).

   7   See Frank 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).

   8   See 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).

   9   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.

  10   See infra note 13 for references to articles and cases that provide a foundation for the rights of non-union workers outside the context of union organizing or working in a unionized workplace.

  11   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 business-use only.

  12   See Elena 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).

  13   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).

  14   See Section 7.

  15   See 29 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 13.

  16   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.

  17   See 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).

  18   See Malin & Perritt, supra note 8, at 62.

  19   E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 897-98 (1993) (NLRB applies the rules prohibiting discriminatory enforcement of work rules to an employer’s work rule related to e-mail).

  20   See also supra articles and treatises in note 13.

  21   N.L.R.B. v. City Disposal Sys., 465 U.S. 822, 823-24 (1984); Interboro Contractors, Inc., 157 N.L.R.B. 1295, 1298 (1966), enforced, 388 F.2d 495 (2d Cir. 1967).

  22   See 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).             

  23   Id. at n.18.

  24   See 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).

  25 Manimark Corp. v. N.L.R.B., 7 F.3d 547, 550 (6th Cir. 1993).

  26   See Exhibit 2, Examples E and F.

  27   See Stull, supra note 22.

  28   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. I Dunno?”).

  29   Id.

  30   Id.

  31   Id.

  32   Id. at 959.

  33   Id. at 961.

  34   See Stull, supra note 22, at n.22.

  35   See id.

  36   See Exhibit 2, Examples C and D, which describe employee communications that are concerted and for the mutual aid and protection of employees and therefore covered by Section 7.

  37   29 U.S.C. 157 (2002); Phoenix Mutual Life Ins. Co., 167 F.2d at 988; see also supra articles and treatises referenced in note 13.

  38   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 employment).

  39   Hardin, supra note 24, at 9-10 (citations omitted).

  40   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 discrimination).

  41   See Hardin, supra note 24, at 12; see also Section 7, supra note 1.

  42   See 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, at 209.

  43   Southern S. S. Co. v. N.L.R.B., 316 U.S. 31, 48 (1942) (unlawful activity not protected).

  44   N.L.R.B. v. Fansteel Metalurgical Corp., 306 U.S. 240, 256 (1939) (violence not protected).

  45   In re 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).

  46   N.L.R.B. v. Local Union No. 1229, I.B.E.W. (Jefferson Standard), 346 U.S. 464, 477-78 (1953) (disloyalty not protected).

  47   N.L.R.B. v. Sands Mfg. Co., 306 U.S. 332 (1939).

  48   See Aroostook 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.

  49   See Hardin, supra note 24, at 73.

  50   Id.

  51   Id.

  52   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.

  53   See 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.

  54   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).

  55   Jefferson Standard, 346 U.S. at 476.

  56   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).

  57   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).

  58   KBO, Inc., 315 N.L.R.B. 570, 571 (1994), enforced, 96 F.3d 1448 (6th Cir. 1996).

  59   Id.

  60   Id.

  61   Today’s managers must understand how technology works in order to anticipate the contexts for concerted behavior in the workplace:

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).

  62   See 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).

  63   See Exhibit 2.

  64   Exhibit 2 provides examples of electronic communications by non-union employees in each of the three categories.

  65   Hertz Corp., 326 N.L.R.B. at 1101.

  66   See 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).

  67   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.

  68   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 (2001).

  69 Weingarten, 420 U.S. at 257.

  70   Id. at 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).

  71 Weingarten, 420 U.S. at 260.

  72   Id. at 257-58; see also Ostmann, supra note 68, at 1320.

  73   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).

  74   Epilepsy Found., 2000 WL 967066 at *3; see also Ostmann, supra note 68, at 1324-30 (analyzing the NLRB’s decision in this case prior to the D.C. Circuit’s decision on appeal).

  75   Epilepsy Found., 2000 WL 967066 at *1-2.

  76   Id.

  77   Id. 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).

  78   Epilepsy Found., 2000 WL 967066 at *1-20.

  79   Id.

  80   Id.

  81   Id.

  82   Id.

  83   Id.

  84   Id. at *10-11.

  85   Id.

  86   Id.

  87   Epilepsy Found., 268 F.3d at 1100 (D.C. Cir. 2001).

  88   Id. at 1102.

  89   Id. at 1100.

  90   Id.

  91   Id.

  92   A computer forensics company reports the contexts for employer investigations of employee misconduct using computer technology:

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).

  93   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 *4-5.

  94   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.

  95   See supra notes 89-91 and accompanying text.

  96   See Exhibit 2, Category #1.

  97   See Exhibit 2, Category #3 (an individual gripe may be job related but generally is not concerted because it does not involve group action).

  98   See Exhibit 2, Category #2.

  99   See supra notes 43-44 and accompanying text.

100   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.

101   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.

Id.

102   Epilepsy Foundation 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.

Epilepsy Found., 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 representative).

103   See 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.

104   See supra notes 102-03.

105   See 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. at 142.

106   See Ostmann, supra note 68, at 1345.

107   See id.; see also supra note 100.

108   See Ostmann, supra note 68, at 1345.

109   See 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).

110   See Intel 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 disclosure).

111   See 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.

112   See Burgunder, supra note 109, at 493.

113   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).

114   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 http://www.amanet.org/research/ 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).

115   See 2001 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).

116   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.”).

117   New Techs., Inc., Computer Forensics Defined, at http://www.forensics-intl.com/define.html (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].

Id.

118   See supra 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.

119   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).

120   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.

Hardin, supra note 24, at 9 (citations omitted).

121 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.

122   See supra notes 24-26 and accompanying text.

123   Epilepsy Found., 268 F.3d at 1103-05 (rejection of supervision constituted unprotected insubordination).

124   Epilepsy Found., 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.

125   Epilepsy Found., 268 F.3d at 1103-05.

126   Id.

127   Id. at 1103.

128   Id.; see also Epilepsy Found., 2000 WL 967066 at *1 n.4 and *6.

129   Epilepsy Found., 268 F.3d at 1103.

130   Id. at 1104.

131   Id. at 1105 (citations omitted).

132 Timekeeping Sys., Inc., 323 N.L.R.B. 244 (1997).

133   Id. at 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.

134   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.

135   Id. at 249.

136   Id.

137   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.

138   See 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.

139   Id.

140   Id.

141   Id.

142   Id.

143   Id.

144   In re 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).

145 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 concerted activity).

146   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).

147   Lafayette Park Hotel, 326 N.L.R.B. at 825.

148   Id.

149   Kinder-Care, 299 N.L.R.B. at 1171, 1176.

150   Id.

151   Id. at 1171.

152   Id.

153   Id.

154   Id. at 1172.

155   Id. at 1171.

156   Id. at 1171-72.

157   Id.

158   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).

159   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.

160   Id. at *10.

161   See id. at *10-11; see also Kinder-Care, 299 N.L.R.B. at 1171, 1176.

162 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).

163   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).

164   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).

165   Phoenix Transit Sys., 2002 WL 991667 at *1.

166   See 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).

167   Phoenix Transit Sys., 2002 WL 991667 at *3.

168   See id.; see also Timekeeping Sys., 323 N.L.R.B. 244.

169   See 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.

170   Id.

171   Id.; see also Rapone, supra note 8, at 667.

172   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).

173   See id.

174   Id. 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.

175   See Stoddard-Quirk, 138 N.L.R.B. at 615-16.

176   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).

177   See id. at 620.

178   See id. at 619-21.

179   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).

180   TeleTech Holdings, 2001 WL 209470 at *2.

181   Id.

182   Id.

183   Id.; Stoddard-Quirk, 138 N.L.R.B. at 616.

184   TeleTech Holdings, 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).

185   TeleTech Holdings, 2001 WL 209470 at *2; see also Mercury Marine-Div. of Brunswick Corp., 282 N.L.R.B. 794, 795 (1987).

186   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).

187   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).

188   Id.

189 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).

190   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.

191   See 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).

192   Adtranz, 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.

193   2000 WL 739735 at *6 (emphasis added).

194   Id. at *7.

195   Id. at *1.

196   Id. at *7.

197   Id.

198   Id.

199   Id.

200   Id.

201   Gallup, Inc., No. E16-CA-20442, 334 N.L.R.B. No. 52, 2001 WL 1219580 (N.L.R.B. June 27, 2001).

202   Id. at *1.

203   Id. at *25, n.20.

204   Id. at *13.

205   Id. at *3.

206   Id. at *1.

207   Id.

208   Id. at *1-3.

209   Id.

210   See, e.g., 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 protected. Id.

211   Adtranz, 2000 WL 739735 at *6; Gallup, 2001 WL 1219580 at *1.

212   Gallup, 2001 WL 1219580 at *1-3.

213   Id.

214   Adtranz, 2000 WL 739735 at *7.

215   Id.

216   See supra notes 172-73 and accompanying text.

217   See 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.

218   Id.

219   See Wilcox, supra note 8, at 254-56.

220   Id.

221   See definition and discussion of cyber workplaces, infra note 11; see also Exhibit 1, Question 6 for a discussion of protected solicitation by cyberworkers.

222   Blakey, 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).

223   Blakey, 751 A.2d at 543.

224   Id.

225   Id.

226   Id. at 551.

227   See McLaren 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).

228   McLaren, 1999 WL 339015 at *1.

229   Id. at *5.

230   See Blakey, 751 A.2d at 543; McLaren, 1999 WL 339015 at *1; see also Waldman, supra note 227, at 15, 3c.

231   See supra notes 172-75 and accompanying text.

232   But cf. supra notes 187-90 and accompanying text.

233   See id.

234   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.

235   See Robfogel, supra note 8, at 236-40; supra notes 187-88 and accompanying text.

236   See supra notes 172-76 and accompanying text.

237   See id.

238   See id.

239   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).

240   See Republic Aviation Corp., 324 U.S. 793, at  n.10.

241 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.

Id.

242   See 2002 Computer Crime and Security Survey, Computer Sec. Inst., available at http://www.gocsi.com/press/20020407.html  (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.

243   Id.

244   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.

245   See supra notes 179-85 and accompanying text.

246   See, e.g., 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 organizing campaigns).

247   See 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).

248   See id.; 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.

249   See supra note 144 and accompanying text.

250   See supra notes 186-91, 210-21, and accompanying text.

251   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.

252   Konop, 302 F.3d at 872-74.

253   Konop allegedly published the following false statements on his Web site:

(1) Nobles [president of Hawaiian Airlines] does his “dirty work 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 with people. 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.”

Id. at 882-83.

254   Id. at 872.

255   Id.

256   Id. at 872-73.

257   Id. at 873.

258   Id.

259   Id.

260   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.

261   Konop, 302 F.3d at 884-86.

262   Id. at 882.

263   Id.

264   Id.

265   Id. at 883-84.

266   Id. at 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. 317 (1998).

267   See Frayer, supra note 247, at 863-64 and accompanying text.

268   See id.

269   Konop, 302 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).

270   Konop, 302 F.3d at 883.

271   Id.

272   See e.g., 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).

273   Epilepsy Found., 2000 WL 967066 (2000).

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