E-mail & Unions: NLRB to Address Access to E-mail During Union Organizing Campaign

Prudential Insurance

In The Prudential Insurance Company of America (N.L.R.B. ALJ, 22-RC-12173, Nov. 1, 2002), ALJ Raymond P. Green held that the company's e-mail policy, which prohibited employees from using the e-mail system for union-related communications but permitted the company to use it for anti-union communications, was an overly broad prohibition that unlawfully infringed on the employees' rights to choose whether to be represented by a union. ALJ Green then held that the company's e-mail policy gave it a substantial advantage in the representation election and ordered that the election, which the company had won, be set aside.

In Prudential, the company's agents were spread throughout the nation. The agents were not required to work set hours. Furthermore, many of the agents worked from locations other than Prudential's office buildings. Based in part on the wide geographic spread of its workforce, the company utilized its internal computer system as the primary means of communication.

Agents logging onto the system were first presented with a 'field alerts' screen where the company posted important messages. It was from that screen that employees could access other network services, including e-mail. Like many employers, Prudential maintained a separate e-mail policy that limited its use to business purposes only. Prudential acknowledged that its e-mail policy, both as drafted and as applied, prohibited agents from communicating about union-related matters. However, there was no evidence that the company enforced its policy in a non-discriminatory manner.

During an organizing campaign by the Office & Professional Employees International Union, the company enforced its business only e-mail policy. Thus, the agents and the union were prohibited from sending pro-union communications. However, while Prudential prohibited agents from using the e-mail system for union-related communications, the company placed its own anti-union messages on both the e-mail and field alerts systems. This conduct led the union to challenge the results of the election.

E-Mail Needs Its Own Pigeonhole

In rendering his opinion, the ALJ acknowledged that e-mail communications do not fit neatly into the standard solicitation or distribution categories. ALJ Green noted that e-mails are like oral solicitations, ie, near-real-time communication, but are also like letters, which can be saved and reviewed at a later time. Accordingly, the ALJ opined that e-mail communication should have its own 'pigeonhole' or classification.

The ALJ further noted that e-mail messaging systems do not raise concerns about space allocation the way a non-electronic bulletin board does. Additionally, he stated, allowing agents to use the e-mail system to engage in union-related communications would not pose any additional costs or burdens on the company (the underlying logic presumably being that the company would not be required to make any additional investments to accommodate these types of communications). Continuing with his reasoning, ALJ Green also recognized that e-mail communications do not have to be printed out or read during working time. Accordingly, he concluded that e-mail poses neither the littering concerns of traditional distribution nor the concerns that it will distract an employee from his or her duties. That being the case, the ALJ concluded, Prudential's policy of prohibiting employees from using the e-mail system for union-related communications while the company did so was an overly broad prohibition that unlawfully infringed on the agents' rights to choose whether to be represented by a union.

Having found Prudential's e-mail policy unlawful, the ALJ ruled that, given the wide geographic spread of the company's agents, the company's use of the e-mail and field alerts systems to distribute anti-union communications while prohibiting similar pro-union communications gave the company a substantial advantage in the representation election and that this unlawful policy tainted the election to such a degree that it should be set aside.

What Does This Mean?

Although this opinion is noteworthy for employers in today's technology-dependent workplace, it should also be noted that it is based on an unusual set of facts. The agents at issue in the organizing campaign were spread throughout the nation, worked varying hours, and sometimes worked out of home offices. Therefore, traditional methods of communication by a union during an organizing campaign, such as mail and home visits, were ineffective. Therefore, the ALJ's reasoning may not necessarily apply to more traditional employment settings.

This decision is being appealed to the full NLRB, which has not previously ruled on this issue. Employer groups and unions alike are filing amicus briefs with the Board, thus signifying the importance of this decision. One business organization has even requested oral arguments, a rarely-used procedure in NLRB appeals. As of this writing, the NLRB had not determined whether oral arguments would be heard nor set a time table for rendering its decision.

Regardless of the NLRB's eventual ruling, this case highlights the importance of the preparation, implementation and utilization of company e-mail policies. Simply put, companies utilizing e-mail communication with their employees need an effective e-mail policy. Furthermore, a policy should be in effect prior to any organizing efforts and must be administered in a nondiscriminatory manner. For example, companies should not prohibit employees from sending union-related messages while at the same time allowing employees to communicate regarding other non-business matters. Finally, in the event of a union organizing campaign, there will be policy considerations and judgment calls that must be addressed prior to utilizing e-mail to spread the company's anti-union message.

Tom McDaniel is an Atlanta-based attorney with Ford & Harrison, a national labor employment law firm with 140 attorneys in 10 offices.

With the United States economy still struggling to regain its footing, many unions see this period of economic, and employment, instability as an opportunity to sway employees to seek the 'protection' of union membership. Recent reports indicate that labor union organizing efforts are on the rise nationally. Furthermore, as unions focus on improving their campaign strategies, the average rate of union victory has increased slightly. Many employers are finding themselves in the midst of fierce union organizing campaigns, the outcomes of which could impact the continued viability of the companies.

With so much at stake, employers and unions alike are looking for the most effective means of communicating their respective messages. In today's technologically advanced workplace, e-mail has become a prime target. E-mail is quick, cheap, and can reach mass audiences with minimal effort.

Traditionally, company-owned e-mail systems have been considered off limits during organizing campaigns so long as the company maintained and enforced a non-discriminatory policy. For example, so long as the company maintained a business-only policy, it could prevent non-business related communications such as those in support of a union's organizing efforts. However, a National Labor Relations Board (NLRB) administrative law judge (ALJ) recently issued an opinion that could change the generally accepted guidelines regarding e-mail.

Prudential Insurance

In The Prudential Insurance Company of America (N.L.R.B. ALJ, 22-RC-12173, Nov. 1, 2002), ALJ Raymond P. Green held that the company's e-mail policy, which prohibited employees from using the e-mail system for union-related communications but permitted the company to use it for anti-union communications, was an overly broad prohibition that unlawfully infringed on the employees' rights to choose whether to be represented by a union. ALJ Green then held that the company's e-mail policy gave it a substantial advantage in the representation election and ordered that the election, which the company had won, be set aside.

In Prudential, the company's agents were spread throughout the nation. The agents were not required to work set hours. Furthermore, many of the agents worked from locations other than Prudential's office buildings. Based in part on the wide geographic spread of its workforce, the company utilized its internal computer system as the primary means of communication.

Agents logging onto the system were first presented with a 'field alerts' screen where the company posted important messages. It was from that screen that employees could access other network services, including e-mail. Like many employers, Prudential maintained a separate e-mail policy that limited its use to business purposes only. Prudential acknowledged that its e-mail policy, both as drafted and as applied, prohibited agents from communicating about union-related matters. However, there was no evidence that the company enforced its policy in a non-discriminatory manner.

During an organizing campaign by the Office & Professional Employees International Union, the company enforced its business only e-mail policy. Thus, the agents and the union were prohibited from sending pro-union communications. However, while Prudential prohibited agents from using the e-mail system for union-related communications, the company placed its own anti-union messages on both the e-mail and field alerts systems. This conduct led the union to challenge the results of the election.

E-Mail Needs Its Own Pigeonhole

In rendering his opinion, the ALJ acknowledged that e-mail communications do not fit neatly into the standard solicitation or distribution categories. ALJ Green noted that e-mails are like oral solicitations, ie, near-real-time communication, but are also like letters, which can be saved and reviewed at a later time. Accordingly, the ALJ opined that e-mail communication should have its own 'pigeonhole' or classification.

The ALJ further noted that e-mail messaging systems do not raise concerns about space allocation the way a non-electronic bulletin board does. Additionally, he stated, allowing agents to use the e-mail system to engage in union-related communications would not pose any additional costs or burdens on the company (the underlying logic presumably being that the company would not be required to make any additional investments to accommodate these types of communications). Continuing with his reasoning, ALJ Green also recognized that e-mail communications do not have to be printed out or read during working time. Accordingly, he concluded that e-mail poses neither the littering concerns of traditional distribution nor the concerns that it will distract an employee from his or her duties. That being the case, the ALJ concluded, Prudential's policy of prohibiting employees from using the e-mail system for union-related communications while the company did so was an overly broad prohibition that unlawfully infringed on the agents' rights to choose whether to be represented by a union.

Having found Prudential's e-mail policy unlawful, the ALJ ruled that, given the wide geographic spread of the company's agents, the company's use of the e-mail and field alerts systems to distribute anti-union communications while prohibiting similar pro-union communications gave the company a substantial advantage in the representation election and that this unlawful policy tainted the election to such a degree that it should be set aside.

What Does This Mean?

Although this opinion is noteworthy for employers in today's technology-dependent workplace, it should also be noted that it is based on an unusual set of facts. The agents at issue in the organizing campaign were spread throughout the nation, worked varying hours, and sometimes worked out of home offices. Therefore, traditional methods of communication by a union during an organizing campaign, such as mail and home visits, were ineffective. Therefore, the ALJ's reasoning may not necessarily apply to more traditional employment settings.

This decision is being appealed to the full NLRB, which has not previously ruled on this issue. Employer groups and unions alike are filing amicus briefs with the Board, thus signifying the importance of this decision. One business organization has even requested oral arguments, a rarely-used procedure in NLRB appeals. As of this writing, the NLRB had not determined whether oral arguments would be heard nor set a time table for rendering its decision.

Regardless of the NLRB's eventual ruling, this case highlights the importance of the preparation, implementation and utilization of company e-mail policies. Simply put, companies utilizing e-mail communication with their employees need an effective e-mail policy. Furthermore, a policy should be in effect prior to any organizing efforts and must be administered in a nondiscriminatory manner. For example, companies should not prohibit employees from sending union-related messages while at the same time allowing employees to communicate regarding other non-business matters. Finally, in the event of a union organizing campaign, there will be policy considerations and judgment calls that must be addressed prior to utilizing e-mail to spread the company's anti-union message.

Tom McDaniel is an Atlanta-based attorney with Ford & Harrison, a national labor employment law firm with 140 attorneys in 10 offices.