The National Labor Relations Board could soon reverse an Obama-era decision that gave workers the right to solicit union participation through an employer’s email system. But if it does, unions will carry on, stakeholders say.
Unions aren’t looking forward to a reversal, but if it happened, their organizing efforts would likely just change course, not come to a halt. Workers were organizing in the workplace long before email. And one drawback of email has always been that it’s not private.
Purple Communications didn’t change that. Even though the decision allowed union-related communications onto work emails, employers are generally able to read the messages their workers are sending and receiving. That makes work email systems a risky place for workers sharing complaints or union information--even if they’re allowed under the law.
Unions are “very intelligent and prefer to not communicate with employees and each other on unsecured networks to which employers have access,” Harry Johnson III told Bloomberg Law. Now advising management clients at Morgan Lewis’ Los Angeles office, Johnson was a member of the NLRB from 2013 to 2015 and authored one of the two vigorous dissents in Purple Communications.
Unions themselves seem disappointed at the possibility that the ruling would be reversed, but they remain optimistic that it wouldn’t hamper their efforts. “Although a rollback in past precedent on this matter could impact unions whose memberships have high usage rates of employer email systems, UNITE HERE remains confident in our ability to communicate with the workers,” Rachel Gumpert, press secretary for UNITE HERE, said in an Aug. 28 email. UNITE HERE is a union for workers in the hospitality industry with more than 260,000 active members.
Also of note: A reversal could also curtail what employers can say about unions on company email.
Keeping Bosses at Bay
The most effective union organizing is still personal, Stephanie Gournis of Drinker Biddle told Bloomberg Law. And even with face-to-face conversations still possible under any NLRB standard, technological advances may have made Purple Communications less important than it was several years ago. Workers can use password protected sites and end-to-end encrypted messaging apps to make sure their bosses aren’t spying on their conversations.
Union representatives agree that the downside of using work emails is that “the employer has access to the content so it would be a mistake to rely on employer email systems exclusively,” Lowell Peterson, executive director of the Writers Guild of America, East, told Bloomberg Law in an Aug. 28 email. “The same is true with Slack, which is almost entirely transparent,” Peterson said. Slack is a common messaging platform used in workplaces.
Workers often choose messaging apps such as Signal and WhatsApp, instead, because they offer end-to-end encryption, which makes unwanted surveillance near impossible.
“Some communications are best if they are shared as widely as possible, and employer Slack channels can be very effective,” Lowell said. But for more sensitive communications, WGA sets up its own chat rooms through non-work message systems.
Email Systems as ‘Speech’ Issue
There’s also a free speech concern that Johnson raised in his dissent in Purple Communications. Specifically, some worry about employers being forced to host speech they disagree with on their company systems.
“Businesses are the ones investing in and managing the hardware and software on which their employees are communicating, so they should be able to make sure their employees aren’t hijacking those systems in a way that undermines the business’s core philosophies and values,” Johnson told Bloomberg Law.
It’s anticipated that the board would return to an earlier standard set up under a case called Register Guard (2007). If that’s indeed the case, “an employer wouldn’t be allowed to let employees’ anti-union messages circulate on their email systems but simultaneously ban pro-union messages,” Johnson said.
Register Guard considered such disparate treatment discriminatory and an infringement of workers’ rights under the National Labor Relations Act.
But this may just reiterate the difficult balancing act between workers’ rights to engage in concerted activities and a business’s property and speech rights.
“The ability of unions to communicate confidentially with workers is a crucial freedom in any democracy,” Gumpert told Bloomberg Law.
Sacrifices for Workplace Harmony?
There’s one final consideration, according to Gournis. Employers are always taking their employer-employee relationships into consideration when they draft new policies and contemplate enforcement, she said.
And that may result in bosses looking the other way as long as solicitation and organization don’t get out of hand. Millennials and Generation Z dominate the workforce, and they have “completely different expectations for what they’ll tolerate from their bosses,” she said. “If employers start cutting off access to communication platforms or engaging in hyper-surveillance and enforcement of email systems, they may find it difficult to attract and retain talent in this tight labor market,” she added.
Gournis also noted the social savvy of unions and said that no matter the fate of Purple Communications, employees will continue to evolve in the way they communicate as part of union organizing.
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