The one place where a company’s employees are sure to gather is, of course, at work. Recognizing this, employees who want to form a union – and employees who have opinions about the union, in an organized workplace – often spread their views or pass out union material at work, whether in the lunchroom, in the lobby, or on the assembly line.
At the same time, many employers would prefer to keep union organizing out of the workplace, arguing that their facility is private property and that management dictates what goes on within its walls. And employers want to minimize the amount of work time employees spend on non-work activities, particularly conversations and actions that might be polarizing or simply oppose the interests of management.
This conflict has resulted in a number of disputes decided by the National Labor Relations Board (NLRB), the federal agency that enforces labor laws, and by the courts. These decisions have created a legal framework for determining which types of speech and activities an employer must allow and which an employer may prohibit. Lately, cases have also addressed this conflict in the more modern realm of electronic communication.
When and Where Union Activities May Take Place
The NLRB and courts have tried to balance the competing concerns of employers and employees by coming up with clear rules on union discussions and activities in the workplace. Here are the basic rules that apply to employees (but note that these rules do not apply to nonemployee union organizers who work for the union rather than for the company):
- Companies may prohibit workers from talking about nonwork issues in work areas during work hours. A company that chooses to adopt this type of rule may not single out union conversations for discipline, either in its policy or in the way it enforces the rule. In other words, a company can prohibit extraneous conversation, but may not prohibit only union discussions while allowing employees to talk about anything else they wish.
- Companies must allow employees to talk about union matters during nonwork hours in nonwork areas (for example, during lunch in the employee lounge or company break room). Union conversations may be prohibited in work areas during nonwork hours only if such a rule is necessary to maintain productivity or discipline and the rule applies to all nonwork topics.
- Companies may prohibit distribution of union literature (such as pamphlets and fact sheets) in work areas at all times, as long as the prohibition applies to all nonwork literature, not just union literature.
- Companies cannot single out union communications or activities for special rules, as noted above. For example, an employer cannot forbid employees to distribute union materials in work areas but allow them to distribute other nonwork documents.
- Companies cannot prevent workers from wearing clothing bearing pro-union logos or symbols, such as a button or cap, unless that type of apparel creates a safety hazard.
Discussions on Company Email
Email has added a modern twist to these well-worm rules. As is true of other types of conversations, an employer may not single out union-related messages for harsher treatment, whether explicitly in its policy or by enforcing a policy only against union communications. For example, if an employer allows employees to send personal messages using company email, it must allow them to send union-related email messages. Similarly, an employer that allows employees to solicit coworkers on behalf of various organizations may not prohibit messages soliciting on behalf of a union.
Until recently, it wasn’t clear whether employers could ban employees from sending any personal messages without running afoul of the National Labor Relations Act. As stated above, employers must allow employees to talk about union issues on nonwork time. In keeping with this rule, the NLRB had previously indicated that a broad prohibition against all personal email could prevent employees from exercising these rights.
More recently, however, the NLRB issued a decision that allows employers to adopt broad rules prohibiting certain types of email communications – for example, personal messages or solicitations – without violating the law. As long as the policy doesn’t explicitly prohibit only union-related messages, and the company enforces it evenhandedly, an employer is free to adopt this type of policy.
It isn’t yet clear how the rules work for employers that monitor employee email messages. Under traditional principles, an employer may not eavesdrop on union activities. However, surveys demonstrate that many employers monitor employee email, and courts have consistently upheld their right to do so. As the courts and the NLRB continue to consider how evolving technology and workplace norms affect traditional union rights, more guidance on these issues is yet to come.
To learn more, see Nolo's section on Labor Unions.