The laws concerning employees voting for or against a union are generally clear. Under the National Labor Relations Act, employers must provide union organizers with the names and addresses of all eligible employees, but they are not required to allow the organizers to campaign on their premises. Indeed, if there's going to be a union vote at your business, you can paper the halls with your anti-union message and send out daily memos about it without letting union supporters do the same. The chief restriction is that this prohibition be consistent with company policy. So if your policy allows personal use of company telephones on company time, you can't stop employees from calling each other to promote a pro-union vote.
How does the company e-mail system fit into the picture? That's where it gets foggier, thanks to a recent decision by an administrative judge for the National Labor Relations Board. The case concerned agents for Prudential Insurance who narrowly rejected representation by the Office & Professional Employees International Union. Union organizers sued, arguing the company should have allowed them access to the e-mail system to disseminate their arguments.
In a surprising decision, the judge agreed and ordered a new election. He noted that Prudential's agents are scattered throughout the country and need not work at company offices. For many, their chief contact with the company is through e-mail. They received "vote no" messages both when they logged onto the company's intranet and when they checked their e-mail, but union organizers could disseminate their arguments only by going through the considerable expense of mailing them out.
"This was not the typical employment setting," says Frederick Warren, an attorney with Ford & Harrison in Atlanta who specializes in employment matters. Warren explains that the goal of the laws governing union votes is for employees to be able to make an informed decision. "By using the e-mail system, the company had an undue advantage in communicating the anti-union message." He notes that Prudential had a clear policy prohibiting personal use of the company e-mail system, so it was not accused of singling out the union in a discriminatory manner. "Even if you have prohibited personal use, under this decision, you may be required to allow union communications."
So far, the ruling is the opinion of one administrative law judge, binding the parties until the National Labor Relations Board rules on the appeal. That could take months or longer. Says Warren, "The cautious approach until the ruling is not to use the company's e-mail system to communicate an anti-union message, unless you [also] allow the union to use it."
Jane Easter Bahls is a writer in Rock Island, Illinois, specializing in business and legal topics.