Unions and Internet Technology Use

Introduction
Labor Unions have been criticized for lagging behind employers, both corporate and government, in employing electronic communications tools in support of organizing efforts and for collaborating during collective bargaining efforts. Section 7 of The National Labor Relations Act (29 U.S.C. § 151-169) (NLRA), originally created in 1935, generally protects the rights of employees to self-organize, form, join, and assist labor organizations. In addition, it protects employees when they engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. (29 U.S.C. § 157). Employee organizations have, however, increased usage of e-mail and other modern communications tools in recent years.
How Employees Use E-Mail and Other Tools to Organize
Employees and employee organizations in particular are socially driven entities owing their strength to the collective abilities of the represented members, to the extent that they can communicate and leverage those abilities in a collaborative way. New tools such as e-mail, text messaging, online forums, social networks and blogs provide opportunities for expanded organizing activity and communications during collective bargaining and political action.
Employee organizations may attempt to use mass e-mail, cell phone text messaging or messaging services like Twitter to communicate quickly with employees, providing information about organizing events, collective bargaining updates and pending legislation or other issues the employee organization deems important. For example, [http://www.liuna.org Laborers’ International Union of North America (LIUNA)] provides the Laborers’ Action Network and Service Employees International Union (SEIU) a splash page that sends e-mail and/or text messages to those who sign up. Both systems are prominently featured on the main homepage for these employee organizations.
Online Forums and Social Networking sites may be used as a means of presenting and storing conversations about collective bargaining proposals, and connecting individuals together for social activities, and many employee organizations now maintain user profiles on a variety of social networks.
Websites may be used to communicate updates about bargaining or organizing or convey updates with a variety of call-to-action messages as replacements or enhancements to employee organization websites.
Issues Surrounding Employee Organization Use of Internet Tools
47 U.S.C. 230 provides that no provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. Generally, this means that organizations are not responsible as a publisher for things that third parties post online on their networks. However, when posting online content on the public-facing portions of blogs, websites, social networking sites or messaging services, employee organizations run the risk of being held responsible for defamatory employee contributions. Often employee organizations are composed entirely of employees and if those employees are acting as authorized representatives of the employee organization rather than as individual employees while creating and posting those submissions, they would not be the postings of third parties - or “other information content providers” and the organization might be found to be the publisher and therefore responsible for the statements. Such a finding could deprive the employee organization of the defense that would otherwise be available to them under 47 U.S.C. 230(c)(1) if they were simply providing a computer service and other individual third parties were adding content to it.
Companies Efforts to Restrict Such Usage
Section 8 of the NLRA makes it an unfair labor practice for employers (29 U.S.C. § 8(a)(1)) or labor organizations (29 U.S.C. § 8(b)(1)(A)) to interfere with, restrain or coerce employees in their exercise of those Section 7 rights and for employers to interfere with the formation or administration of a labor organization (29 U.S.C. § 8(a)(2)).
Despite this prohibition, companies nevertheless may attempt to limit the ability of employees or employee organizations from using modern communications tools by implementing policies that restrict the use of the employers’ e-mail systems and computer networks.
An employer may impose personnel rules that prohibit, or severely restrict employee use of employer-provided e-mail systems, internet access, cell phones or computers to work-related use only; or may seek to limit personal use by restricting non-work usage to time periods when personal use is permitted such as during lunch breaks or before or after regular working hours. These rules can have an impact on employee sending or receiving e-mail messages, access to websites, forums and blogs and the receipt of text messaging.
Legal Limits on Curtailment Policies
Company attempts to increase restrictions on increased employee and employee organization use of internet communications systems have been upheld by the U.S. Court of Appeals, in Guard Publishing Company v. National Labor Relations Board 571 F.3d 53 (July 7, 2009); The Court ruled that the Register-Guard newspaper had engaged in an unfair labor practice when it disciplined an employee for sending union-related e-mail in violation of the company’s e-mail policy. Central to the decision was that the company’s enforcement of the violation in the Register-Guard case was applied only in connection with union-related messages and not other messages that were also prohibited by the policy. In other words the policy was applied in a manner that singled out union communications. However, the Court did not address the earlier holding at the National Labor Relations Board that an employer can adopt limits on employee use of the employers’ email systems if those limitations are implemented in a neutral, non-discriminatory manner.

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