In a recently published decision involving Columbia University, the National Labor Relations Board (NLRB) held that the employer did engage in unlawful conduct when it refused to provide a union with the e-mail addresses of employees who were eligible to vote in a union representation election. Although the case arises in a narrow context, the decision has broad implications on the issue of access to and protection of an employer’s e-mail system in both the union and non-union environments.
The NLRB requires employers to provide to a union the names and addresses of the employees who are eligible to vote in a scheduled representation election. In the Columbia University case, the employer operated a research vessel which was staffed by both licensed and unlicensed crew members. The union filed an election petition seeking to represent the crew members in two separate units, and the University provided the union with the names and home addresses of the eligible voters. The vessel, however, was at sea for most of the pre-election period. The union, knowing that the employees had access to the employer’s e-mail system while at sea, asked the employer to provide the e-mail addresses of the eligible voters. The University refused the request. The union lost the election in one of the two units and filed objections to the conduct of the election based on the denial of their request for e-mail access. The Regional Director found merit to the objection, but upon review, the NLRB reversed the ruling and held that the University was not obligated to provide the union with the e-mail addresses.
In so holding, the NLRB noted that the issue raised a “multitude of unanswered and difficult questions” regarding the potential ramifications for both employers and employees if employers were required to furnish unions with employee e-mail addresses. Among those questions were the costs that might be imposed on the employer if unions were able to send e-mail to the employees’ workplace e-mail addresses. Additional questions related to the risk that the union’s mailings could be so voluminous as to impair the employer’s ability to conduct its business electronically and what effect such a requirement would have on the employer’s right to refuse to furnish a forum on its property for third parties to express their views. The right of the employer to monitor its e-mail system without potentially engaging in unlawful surveillance of its employee’s union-related activities posed another unanswered question, as did the balancing of the employer’s monitoring rights against the employees’ privacy rights. For all of these reasons, the NLRB was unwilling to expand the employer’s obligations to include a duty to provide the union with the employees’ workplace e-mail addresses.
The limits, if any, on the employer’s rules and regulations governing employee use of e-mail systems in conjunction with the right of the employees to engage in concerted activity for mutual aid and protection under the National Labor Relations Act have not yet been resolved by the NLRB. The theory advocated by organized labor is that the employer’s e-mail system is the equivalent of the “computerized work areas” to which employees may have access for workplace solicitation and distribution. Employers, however, contend that the e-mail system is more analogous to the traditional company-owned bulletin board, and employers should be allowed to adopt and enforce non-discriminatory rules restricting all non-business use of the system, including use relating to union organization. The NLRB has consistently held that there is no statutory right of an employee or a union to use an employer’s bulletin board as long as access to the bulletin board is not restricted in a discriminatory fashion.
The Columbia University decision provides some insight into the manner in which the current NLRB views the e-mail access issue and suggests that at least for the present, they are favoring the bulletin board analogy theory. This could change as the makeup of the NLRB itself changes, and the issue is one that bears watching. In the interim, employers are urged to review their e-mail and internet access policies to ensure that the right to monitor the system is clearly expressed and access to the system by third parties is prohibited.