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 ¼ the right . . . to engage in . . . other concerted activities for the purpose of mutual aid and protection.”¹⁴ In other words, employees have the right to engage in concerted, protected activity in the workplace that goes beyond their rights to engage in 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 p