Critical Thinking Presentation (Two)

CHAPTER 12: Labor Relations

LEARNING OBJECTIVES

·  Understand the provisions of the National Labor Relations Act (NLRA), which apply toall employers, regardless of whether their workforce is unionized

·  Explain the reasons why employees form and join unions

·  Describe the restrictions the NLRA places on union organizers and employer behaviors during organizing campaigns

·  Gain an appreciation of the reasons for decline in union membership and the challenges organized labor faces in a global information-based economy

·  Understand the process of collective bargaining and the various types of bargaining items

·  Appreciate the role of alternative dispute resolution when collective bargaining has been unsuccessful

Labor Unrest at the New York MTA

On the morning of December 20, 2005, New Yorkers who relied on public transit to get to their places of employment or around town to complete their holiday shopping woke up to find that the subway and public bus systems had been shut down by a strike of the 34,000 workers who were members of the Transport Workers Union Local 100 of the Metropolitan Transportation Authority (MTA). Negotiations for a new contract had broken down because of a failure to agree on retirement or pension provisions and wage increases. The strike was seen as a particular hardship for lower-income residents of the outer boroughs of New York City.

While the strike itself lasted only 60 hours, it took another day to get the transit system fully up and running. Nonetheless, the strike had a significant impact on New York. Public schools were affected and had to operate on a delayed schedule, while many private schools were forced to close completely. Public safety was impacted detrimentally because of the increased congestion on streets and sidewalks. The financial impact of the strike was significant, as the city estimated that it lost more than $300 million per day and other revenues.

The strike was illegal under the New York State Public Employees Fair Employment Act, more commonly known as the Taylor Law, which prohibits municipal workers from striking and provides alternative means for resolution of labor-related disputes. This law, which had been enacted in response to a previous transit strike, which took place in 1966, also provides for criminal penalties, including imprisonment for union officials and fines to be levied against both the union and striking employees. Local 100 did not have the support of its parent union—the International Transport Workers Union—for the strike, with the parent union ordering Local 100 workers to return to work as soon as it became aware of what had transpired. As a result of the strike, Local 100 president Roger Toussaint was sentenced to ten days in jail and the union was fined $2.5 million. $300,000 in strike-related penalties were levied against union members and deducted from the paychecks of striking workers. 1  The aftermath of the strike involved a tremendous amount of published analysis of the political behavior of the union as well as local elected officials, particularly Mayor Michael Bloomberg, illustrating the politically charged realities in which organized labor operates.

Labor relations is a key strategic issue for organizations because the nature of the relationship between the employer and employees can have a significant impact on morale, motivation, and productivity. Workers who feel that the terms and conditions of their employment are less than advantageous will not be as committed to perform and to remain with an employer. Consequently, how organizations manage the day-to-day aspects of the employment relationship can be a key variable affecting their ability to achieve strategic objectives.

Workers who have unionized create special challenges for human resource (HR) management. When workers form unions, the employment relationship becomes more formal through a union contract and is subject to special provisions of the National Labor Relations Act. This Act allows unions to be formed and exist as employee organizations that have the legal right to bargain with management over various terms and conditions of employment. Unions provide membership solely for employees; managers are prohibited by law from joining employee unions or from forming their own unions.

Organized labor in the United States has had a cyclical history, generally consisting of short periods of sharp growth in union membership and activity followed by extended periods of decline. 2  In the early part of the twentieth century, employee-centered management practices were eroding interest in unionization. The Great Depression then ignited strong interest in unions with the resultant creation by John Lewis of the Congress of Industrial Organizations (CIO). At that time, both the CIO and the American Federation of Labor (AFL) were able to unionize large segments of the workforce. These organizing efforts were largely focused on second-generation immigrants, particularly Catholics, Italians, and Jews, as unions attempted to provide these individuals with the full benefits of working in the WASP-dominated economy.

Unions continued to enjoy increased membership until World War II. Interest in unions declined post-War until the mid-1960s, when unions began to reach out to African Americans during the drive for civil rights and subsequently enjoyed a renewed popularity. Also at that time, Cesar Chavez founded the National Farm Workers Association, drawing attention to the plight of Latino and Filipino farm workers who had been forced to endure deplorable working conditions and substandard wages. Chavez’s efforts led to a grape boycott that was observed by more than 17 million Americans and, more generally, resulted in widespread awareness and distrust of exploitation of workers by employers. These successes also led to a flurry of union organization among public sector employees that continued until the early 1980s.

August 3, 1981, is considered to be a significant day in the history of American labor. On that date, more than 12,000 employees of the Federal Aviation Administration (FAA) who were members of the Professional Air Traffic Controllers (PATCO) union walked off of their jobs. When President Reagan ordered them back to work within 48 hours, 11,325 of them refused and were fired immediately, as the FAA commenced hiring permanent replacements. Since the unsuccessful PATCO strike, strikes have nearly disappeared in the United States. During the 1950s, organized labor successfully orchestrated an average of 344 work stoppages annually. 3  However, post-PATCO, that number had continuously been in decline and by 2008 had dipped to just 15, with 9 of these 15 lasting for 10 days or less. 4  The PATCO strike greatly influenced public perceptions against organized labor stoppages and affirmed the right for employers to hire permanent replacements for striking workers. This shift has turned the strike into a present-day near-suicide tactic for unions.

Union membership in the United States has been steadily declining for a number of years. In 1970, approximately 30 percent of the private workforce was unionized, in addition to a majority of public sector employees. By 1999, the U.S. Department of Labor reported that only 13.9 percent of the workforce was unionized. By 2013 union membership had dropped further to 11.3 percent of the workforce. Public sector employees were more than five times more likely to be union members than private sector employees (36 percent versus 6.6 percent), and more than 50 percent of union members lived in seven states (California, New York, Illinois, Pennsylvania, Michigan, New Jersey, and Ohio). 5  These numbers represented declines in overall union membership as well as in both the public and private sector union density. 6

The decline in union membership can be attributed to a number of factors. First, many workers have become disenfranchised from their unions. Allegations of union corruption and misuse of funds—combined with the fact that workers sometimes feel that the costs of union membership outweigh the benefits—have eroded union membership. Second, many organizations have moved their manufacturing and assembly operations outside the United States. Unions have traditionally had their strongest bases of support among these blue-collar workers, and the movement of those jobs overseas has hurt unions. Third, changes in the nature of work and technology have eliminated many of the traditional manual labor jobs in which union members were employed. Finally, many unions have refused to be flexible enough to allow organizations to grow and adapt in relation to the changes taking place in their industries, markets, and the technological, economic, and sociocultural environments. The traditional model of American labor unions, which guard employee rights by attempting to maintain the status quo, no longer benefits employers or employees. Unions of the future will have to be based on a different model and have different relationships with the organizations whose workers they represent—if they continue to exist.

Although overall union membership is declining, it is important to understand organized labor relations for at least three reasons. First, in many industries, unionization is the norm. Many public sector workplaces are unionized. In the private sector, industries such as transportation, construction, hospitality, publishing, education, and healthcare are usually highly unionized. In fact, the transportation industry has the highest level of private sector union membership, at 25.5 percent. 7  Managers and business owners in these industries have no choice but to be well versed on the laws that regulate the relationship with union employees. Second, competitors may be unionized, and settlements in those organizations may impact HR practices, programs, and policies needed to remain competitive in recruiting and retaining productive employees. Arguably, the most important reason for employers to have a sense of the labor relations landscape is that the National Labor Relations Act provides all employees—rather than just those who have unionized—with specific rights. Consequently, many employers who operate in nonunion environments may be unfamiliar with some of the terms and conditions of employment outlined in the Act. Section 7 of the Act grants all employees, including those who are not members of unions, the right to engage in activities that support their “mutual aid or protection.” There are six notable provisions under this section that employers must know to avoid violations of the Act. 8

First is the right of employees to discuss employment terms. In order for employees to consider whether they wish to organize, they must be able to discuss the terms and conditions of employment, including compensation, harassment, and discrimination. This right, however, does not extend to the disclosure of confidential information, such as salaries, to which an employee might have access as part of his or her job. Second, employees reserve the right to complain to third parties, such as customers, clients, and the media, about their treatment by the employer. Again, however, the employer retains the right to prohibit disclosure of any confidential or proprietary information. Third, employees have the right to engage in a work stoppage or collective walkout to protest working conditions without fear of retaliation. Any employee who is disciplined or discharged for engaging in such behavior has a valid claim against the employer under the National Labor Relations Act. Fourth, employees have the right to honor picket lines without fear of retaliation. This is considered protected activity regardless of whether the employee is a member of the picketing union or merely sympathetic to the cause and plight of the workers on the picket line. Fifth, employees have the conditional right to solicit and distribute union literature. Such behavior can be restricted but not fully prohibited, as will be discussed shortly. Finally, employers cannot unilaterally ban employees’ access to the worksite while off duty. Restrictions may be imposed that limit access to the interior of the facility if applied consistently to all employees for all purposes, but employees still retain the right to be present on company property, such as the employee parking lot, after working hours to engage in behaviors protected under the Act.

It cannot be emphasized enough that nonunion employees enjoy significant protection against arbitrary, capricious, or harassing conduct by employers. This standard was established by the Supreme Court in the 1962 case of NLRB v. Washington Aluminum Co., 9  where the Court found that employee activity that was concerted for mutual aid or protection (in this case, walking off the job in protest of poor working conditions) was lawful. As long as the employee’s or group of employees’ actions are beyond that of a personal complaint pursued in self-interest, such behavior is protected without the presence of a formally recognized union. These rights have consistently been reinforced in numerous court cases since the initial ruling in Washington Aluminum.

Just because an organization is not unionized today does not mean that it may not be in the future. Managers in such organizations need to know why workers form or join unions, how the law requires the employer to behave during any union-organizing campaign and after a union has been voted in, how the collective-bargaining process is conducted, and how impasses may be settled. Some management advisors who work with organizations on labor relations have even gone as far to encourage employers to have their supervisors talk openly with employees about possible union representation in a proactive manner before any possible organizing efforts begin. 10  Critical to such a strategy, however, is training of managers on what they are allowed to say to employees (facts, opinions, and examples) and what they are not allowed to say or do (threats, interrogation, promises, and surveillance). 11

The word “union” means that workers have agreed to work together in dealing with and negotiating the terms and conditions of their employment with management. The Latin root uni means one, in the sense of a union; it means that a plurality of workers has united to speak with “one voice.”

Organized labor presents a number of key strategic challenges for management. First, when workers unionize, the power based within the organization is redistributed. Employers can find that their ability to manage workers at their discretion to achieve the organization’s strategic objectives has been severely curtailed. Second, the process of unionization involves bringing in outside players: union representatives, who then become an additional constituency whose support must be gained for any new or ongoing management initiatives. Finally, a unionized work setting can greatly impact the organization’s cost structure, particularly payroll expenses and work processes that may contribute to or retard efficiency in operations.

Why Employees Unionize

Employees usually form or join unions because of the perceived benefits that unionization might provide them. These benefits can be economic, social, and/or political. Economic benefits can result from a union’s ability to negotiate higher wages, better or expanded benefits, greater job or employment security, and improved working hours and conditions. Social benefits can be derived from the affiliation and sense of community that workers share when they are unionized. Their personal issues and needs relating to their jobs and lifestyles can often be integrated within the union agenda, with corresponding support gained from coworkers. Unions also often sponsor social events for their members and their families. Is it not surprising that many unions have the word “brotherhood” in their name; this attempts to signify the family or community atmosphere the union tries to create for its members.

Political benefits can be gained through the sense of power in numbers. In negotiating with management over terms and conditions of employment, individual employees are relatively powerless. They often need the organization (to earn a living) far more than the organization needs them (individual workers can be easily replaced). When workers unionize and speak with one voice, they leverage their individual power against management and equalize the balance of power within the organization. Management may be able to do without individual employees, but they cannot do without their entire workforce. Unions can allow workers far greater say and involvement in negotiating and setting critical terms and conditions of employment and in ensuring fair treatment from the organization. Unions can often provide additional political benefits in a literal sense in that the power and strength of their united membership can be used to support and influence political races and legislation passed at the local, state, and federal levels.

No benefits come without some cost, and union membership is no exception. Union members pay at least two significant costs for their benefits. First are the economic costs of the fees or dues that unions charge their members to support the initiatives the union undertakes on behalf of its employees. Second are the political costs employees assume when they relinquish their individual freedom to deal with their employer and be represented by the union. Individual employees may not agree with the terms and conditions negotiated for them or the tactics and strategies the union uses in negotiating. Although individual employees do vote on the decision to strike, an employee who does not wish or cannot afford to go out on strike is basically stuck in accepting the majority position and then assumes any risk associated with deviating from the union majority.

The National Labor Relations Act

In 1935, Congress passed the National Labor Relations Act (NLRA), also called the Wagner Act, which gave employees the right to unionize and to regulate union and management relations. This Act has been amended several times, most notably in 1947, with amendments known as the Taft-Hartley Act, and in 1959, with amendments known as the Landrum-Griffith Act.

The NLRA created the National Labor Relations Board (NLRB) to oversee the provisions of the Act. Among other duties, the NLRB is responsible for overseeing union elections, certifying a particular union as the official bargaining representative of a group of employees, and hearing allegations of violations of the Act from employers, unions, and employee groups.

As a first step in establishing a union, a group of employees petitions the NLRB, often through the assistance of a union representative, to conduct an election. As a prerequisite for an election, the NLRB requires at least 30 percent of the employees to have signed authorization cards, which indicate an expressed interest in having union representation from a specific union. Most petitions to the NLRB involve the presentation of authorization cards from a far greater number of employees than 30 percent. These authorization cards are not a vote for the union; they are merely the means for establishing the level of employee interest to conduct an election. Some employees who are not in favor of union representation often sign authorization cards under peer pressure or to facilitate the election process. Union-organizing campaigns often create very stressful working conditions, and some employees who are against unionization may sign authorization cards to ensure that the election be held as soon as possible.

Once the NLRB has received the authorization cards and determined that there is sufficient interest to conduct an election, it will attempt to determine the appropriate bargaining unit. A bargaining unit is a group of employees who have similar wages, skill levels, working conditions, and/or levels of professionalism. The NLRB will determine whether the organization should have one bargaining unit that covers all employees or separate bargaining units for different groups of employees, given the differences in their jobs.

For example, airlines have separate bargaining units for flight attendants, pilots, and ramp workers, given the differences in job responsibilities, training, hours, and working conditions. Newspapers have separate unions for writers, printers, and press people because of similar differences. A restaurant, on the other hand, might have one bargaining unit that includes wait staff, cooks, hosts, bartenders, and bus staff. When a unionized organization has more than one bargaining unit, each bargaining unit negotiates a contract with management separately; however, the individual units are often impacted by what the other units negotiate, and each unit often lends support to the others during periods of labor unrest.

When the NLRB conducts an election, the option that receives the majority of the votes (50 percent plus one) wins the election. There may, however, be more than two options (union or no union) on the ballot. Given that the NLRB requires authorization cards from only 30 percent of employees, it is mathematically possible for more than one union to be part of an election. This has been the case when there has been public knowledge of dissatisfied employees and thus more than one union attempted to organize workers simultaneously. If there were three options on the ballot (no union, Union A, Union B) and none of them received more than 50 percent of the initial vote, then the option receiving the least support would be dropped and a second ballot would be issued. Eventually, one option will have the support of more than 50 percent of the employees in the prospective bargaining unit.

Behavior During Organizing Campaigns

Union-organizing campaigns often present difficult working conditions for employees, who are often continuously subjected to opposing information from management, union representatives, and prounion coworkers in support of their respective positions. In passing the NLRA, Congress determined that it should regulate the behavior of management and union representatives in union-organizing campaigns to ensure that one does not have an unfair advantage over the other in communicating positions to employees.

The NLRA outlines specific provisions pertaining to employer conduct during union-organizing campaigns in its discussion of unfair labor practices. Section 8(c) of the Act provides that “the expression of views, arguments or opinions, or the dissemination thereof, whether in written, printed, graphic or visual form shall not constitute or be evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit.” Therefore, employers have free rein to communicate their position concerning unionization to employees during working hours, which is only appropriate because the employers are paying employees for that time. However, employers are forbidden from making any threat or promise pending the outcome of the election. The reason for this directive is that allowing employers to do so would give employers an unfair advantage in the election. The union does not have the power to make any such promises, and so to ensure a level playing field, the NLRB also prohibits employers from doing so. Employers need to treat employees more favorably before the NLRB has stepped in and established employee interest in conducting an election.

The Act also allows prounion employees the full right to approach their coworkers at work and express their support of the union, as long as such contact takes place during nonworking periods in nonworking areas (such as the employee cafeteria during lunch breaks, the parking lot after leaving work, or in a restroom during a scheduled break). This is consistent with the constitutional guarantee of freedom of speech. Employers can prohibit employees who support the union from communicating this support to coworkers at any other time.

A more difficult question concerns the extent to which employers can prevent employee solicitation by union representatives at the worksite. The U.S. Supreme Court has issued several rulings in this area that continue to redefine the relative positions of unions and management. Generally, an employer can restrict nonemployee access to employees if two conditions have been met: (1) The nonemployee—in this case, a union organizer—must have some reasonable means to access and communicate with employees outside the workplace, such as electronic or print media, and (2) the employer must have a general ban on all nonemployee solicitation. The latter condition is not limited to union solicitation; it might also include charitable appeals, blood drives, or employer-sponsored outings for which employees have to pay. If these two conditions are met, then the employer can restrict union organizers’ access to employees.

Historically, this issue of access to employees has involved somewhat of a “chess game” between employers and union organizers. Subsequent to the Supreme Court rulings described above that restrict union organizer access to employees, unions have turned to a strategy called “salting” the workplace. Salting involves a paid union organizer applying for employment with an employer whose employees are the target of an organizing drive. The Supreme Court has held that under the NLRA, an employer cannot discriminate against a person solely on the basis of his or her status as a salt and intention to organize the workplace. Employers have since countered salting efforts through the use of restricted hiring criteria that have the effect of eliminating salts from employment consideration. The portrayal of union organizing efforts and management responses as a chess game relates to the fact that each side is attempting to develop a response to counter the other side’s most recent “move” or court victory.  Reading 12.1 , “ A Big Chill on a ‘Big Hurt’: Genuine Interest in Employment of Salts in Assessing Protection Under the National Labor Relations Act ,” illustrates the tensions that exist between unions and employers in organizing campaigns.

Employees who are dissatisfied with their union representative may elect to decertify the union. The process for decertification happens in exactly the same manner as certification—utilizing authorization cards and requiring a 50 percent plus one majority employee vote. The NLRA does, however, require employees to wait at least one year from certification until a decertification election can be held. This is to ensure that the union has had appropriate time to work on behalf of the employees and to ensure that employees do not drain the time and resources of the NLRB by continually calling for certification and decertification elections. Similarly, if a union loses an organizing campaign, the NLRA prohibits another organizing campaign and election for at least one year.

Collective Bargaining

When a union is elected to represent employees, the union representative and employer are jointly responsible for negotiating a collective-bargaining agreement that covers various terms and conditions of employment. There are no set requirements as to the term or content of any collective-bargaining agreement, but the NLRA classifies bargaining items as mandatory, permissive, or prohibited. Mandatory items must be negotiated in good faith if one party chooses to introduce them to the negotiations. They consist of many of the economic terms of employment, such as wages, hours, benefits, working conditions, job-posting procedures, or job security provisions. Mandatory items also include management rights clauses and union security clauses. The two parties are not required to come to an agreement on these items, but they are legally required to discuss them and bargain in good faith if requested by the other party. “Mandatory” simply means that one party cannot refuse to discuss one of these items if the other party requests to do so.

Permissive items can be discussed if both parties agree to do so. Neither party can legally force the other party to negotiate over a permissive item nor can either party pursue a permissive item to the point of impasse. Permissive items include things such as changes in benefits for retired employees, supervisory compensation and discipline, and union input in pricing of company products and services. Prohibited items are things neither party can negotiate because these items are illegal. They include featherbedding (requiring the employer to pay for work not done or not requested), discrimination in hiring, or any other violation of the law or illegal union security clauses. A listing of some of the items that fall under each classification is presented in  Exhibit 12.1 .

EXHIBIT 12.1: Types of Bargaining Items

Mandatory	Permissive	Illegal
Base wages	Union representation on board of directors	Closed-shop agreements
Incentive pay	Benefits for retirees	Featherbedding
Benefits	Wage concessions	Discrimination in hiring
Overtime	Employee ownership
Paid time off	Union input into company pricing policy
Layoff procedures
Promotion criteria
Union security clauses
Management rights clauses
Grievance procedures
Safety and health issues

© Cengage Learning

Unions often attempt to negotiate security clauses into the collective-bargaining agreement. These clauses are a mandatory bargaining item and an attempt to ensure that the union enjoys some security in its representation of employees and that the cost of the union’s efforts on behalf of employees is covered. The two types of union security clauses are union shop agreements and agency shop agreements. Union shop agreements require all newly hired employees who are not union members to join the union within a specified time period after beginning employment. Agency shop agreements do not require employees to join the union but require all nonunion members who are part of the bargaining unit to pay the union a representation fee, usually equivalent to the amount of dues paid by union members. The rationale for collecting such fees is that although individual employees can maintain the freedom of being nonunion, as bargaining unit members, they reap the advantages of what the union negotiates. Therefore, it is only fair that they should share equally in the cost of obtaining what the union is able to achieve for the bargaining unit. Although union security clauses are a mandatory bargaining item, the NLRA allows individual states to pass right-to-work laws that prohibit union and agency shop arrangements. To date, nearly half the 50 states have passed such laws. When Michigan, the birthplace of the United Auto Workers and the U.S. labor movement, became the 24th right-to-work state in December 2012, the move was seen by many as a crushing blow to the future of organized labor in the United States. 12

A third type of union security agreement that was originally allowed under the NLRA has since been outlawed. Closed-shop agreements required the employer to hire only applicants who were already union members. Congress found such arrangements to be detrimental to labor because individuals without income were forced to pay union dues without the benefit of any employment. There was no guarantee that an applicant who belonged to a union subsequently would be hired, and so closed-shop agreements were eventually outlawed.

Failure to Reach Agreement

When the union and the employer are unable to agree on the terms of the collective-bargaining agreement, workers have the right—under the NLRA—to strike. Whether employers are obligated to rehire striking employees at the conclusion of the strike depends on the kind of strike.

An economic strike is one in which the parties have negotiated in good faith but have been unable to settle on a contract or collective-bargaining agreement. The organization has the right to continue to operate during such a strike and often does so by utilizing management employees, hiring temporary workers, and/or hiring permanent replacements. The discretion of how to proceed rests with the organization. Economic strikers cannot be terminated simply for engaging in collective strike activity. At the conclusion of the strike, they must be reinstated if two conditions are met: (1) Their individual jobs still exist and (2) permanent replacements have not been hired. Economic strikers run the risk that the employer may eliminate their jobs or hire replacements; both activities are protected under the NLRA.

An unfair labor practice strike is one in which employees strike in response to some action of management that the NLRA identifies as an unfair labor practice. These behaviors are outlined within the statute, and workers who go out on such a strike have a guaranteed legal right to reinstatement by the employer even if the employer has hired permanent replacements in the interim.

A wildcat strike is one in which workers decide not to honor the terms of the collective-bargaining agreement and walk out in violation of their obligation to the employer under the agreement. Because wildcat strikers have breached their contractual obligations to the employer, they have no right to reinstatement in their jobs. Wildcat strikes can be caused by perceived unfair treatment of an employee by management or a worksite may be perceived as hazardous or dangerous, such as those found in the mining and construction industries. In certain industries, management will attempt to resolve the issue if the claims are deemed to have merit in lieu of fighting the union in court. In addition, federal workers are prohibited by law from striking for any reason, including an economic strike. Any strike by federal employees is not protected under the NLRA, and striking employees have no legal rights to return to their jobs. Such was the case in the early 1980s when the PATCO union struck, and President Reagan immediately fired and replaced the striking workers.

The incidence of labor strikes in the United States is decreasing as both employees and employers realize that everyone loses during a strike. The company gets hurt financially and in the public domain; workers get hurt financially and emotionally; customers may be hurt operationally and financially, particularly if there are no substitute providers. Organizations can prevent strike activity in two principal ways: through the use of a formal grievance procedure or through the alternate dispute resolution (ADR) processes of mediation or arbitration.

Grievance procedures are a permissive bargaining item under the National Labor Relations Act, as indicated in  Exhibit 12.1 . Grievance procedures outline how conflicts or disagreements between workers and management over the terms of the collective-bargaining agreement are handled. Grievance procedures are often the catalyst to resolving problems before the conflict escalates to a strike. They are also useful in helping union leaders and management identify weaknesses or oversights in the collective-bargaining agreement that can be addressed during the negotiations over subsequent collective-bargaining agreements. Grievance procedures are also useful as a means of communicating to management firsthand work-related sources of employee dissatisfaction that can hamper morale and productivity.

An increasing number of collective-bargaining agreements are calling for mediation or arbitration of labor disputes as a means of avoiding strikes. Mediation involves an outside third party who has no binding decision-making authority assisting both sides in reaching a settlement. This individual assists the two sides in finding some middle ground on which they can agree and in facilitating dialogue and concessions. Arbitration works in a similar manner: It involves an outside, unbiased third party who listens to the arguments presented by both sides. However, the arbitrator renders a ruling or decision that binds both parties. Both sides agree to abide by the decision of the arbitrator prior to entering the arbitration hearing. Mediation is frequently used in public sector organizations where strike activity is outlawed at the federal level and often greatly restricted at the state and local levels. Arbitration is used quite frequently in professional sports in resolving salary disputes between union players and the owners of their teams.

Arbitration has been controversial in that it has been perceived as depriving employees of their rights to pursue claims in courts of law and have their cases heard by a jury and replacing this process with an employer-controlled system that is less likely to result in a favorable decision for the employee. However, history has shown that this is not the case. Employment-related cases heard in federal district courts historically have resulted in a 12 percent rate of success for employees, while general employment arbitration has favored employees in 33 percent of cases decided, and labor arbitration—heard under a collective-bargaining agreement—has favored employees in 52 percent of cases. 13

Unions Today

One way in which unions are attempting to maintain their viability in light of declining membership is to recruit in organizations and industries with which they have no previous affiliation. With the demise of their traditional manufacturing base, many domestic unions have expanded their missions, as efforts to recruit new members have become a top priority. Such recruiting efforts are seen as so central to the ongoing livelihood of unions that the AFL-CIO now earmarks one-third of its operating budget for organizing, compared to just 5 percent 10 years ago. 14  Consider the diversity now present in some of the leading labor unions: the United Steelworkers of America, established in 1936 to represent steelworkers, now includes employees from Good Humor/Breyers, the Baltimore Zoo, and Louisville Slugger; the United Auto Workers, established in 1935 to represent auto workers, now includes employees from Miller Beer, Planter’s nuts, Kohler bathroom fixtures, Yamaha musical instruments, and Folger’s Coffee; the International Brotherhood of Teamsters, established in 1903 to represent drivers in the freight-moving industry, now includes flight attendants, public defenders, and nursing home employees. There is no consensus regarding the value of such diversification by unions. Some argue that it provides more power to unions and their members by strengthening their numbers and preventing their dependence on one particular industry. On the other hand, critics argue that this prevents unions from being very influential in setting wages and policy in a particular industry, given the need to spread time and resources across multiple industries. However, given the demise of traditional manufacturing jobs from which unions originated and relied on for their support and power, unions have little choice but to reach out to new industries. The critical issue is whether this diversification is really strategic for the union or merely opportunistic.

Another new development in how unions operate is their reliance on technology. Unions have been using the Internet effectively to recruit new members, particularly those in technology-based industries, and to gain support from others in their organizing efforts. The South Bay Central Labor Council, based in California’s Silicon Valley, consists of 110 affiliated unions that represent more than 100,000 employees in the area. The Council is using the Internet to communicate with and, it is hoped, organize contingent workers. 15  Similarly, the Service Employees International Union undertook a campaign to organize janitorial workers in the Silicon Valley. The union successfully used the Internet to publicize its case against Apple Computer, Oracle, and Hewlett-Packard worldwide via electronic bulletin boards that informed engineers and programmers about the wages and working conditions of those who cleaned their offices at night. 16  Finally, the Oakland-based Local 2850 of the Hotel Employees & Restaurant Employees International Union used the Internet in a campaign against software giant PeopleSoft. In attempting to organize workers from a hotel used extensively by PeopleSoft and its corporate partners and unable to gain the support of PeopleSoft, the union launched an Internet campaign that caused PeopleSoft’s stock value to decline by more than $63 million, according to the company’s own estimates. 17

The NLRB has also considered the role of technology as it relates to worker rights under the NLRA. Given its charge to ensure that employees are able to communicate freely with each other about wages and all other conditions and terms of employment, the NLRB has endorsed e-mail communication between employees as a means of safeguarding those rights. Only when an employee’s behavior is disruptive does NLRA protection cease. As a result, employer policies that ban all nonbusiness and/or personal use of e-mail may interfere with the right to self-organize and therefore constitute a violation of the NLRA. A key issue here is the extent to which employees normally use the employer’s computer system for their regular work and communication with coworkers. Employees who normally use a computer system in carrying out their regular job responsibilities are considered differently from employees who generally do not use computers or e-mail to carry out their regular job responsibilities. In addition, the more e-mail is normally used in the workplace, the less restrictive a policy an employer can implement that regulates communication that might be considered protected concerted activity under the NLRA. 18

In recent years, the proliferation of social media has greatly altered the means by which employees communicate with each other, both inside and outside of the workplace. The National Labor Relations Board has provided protection to some employees who have had adverse action taken against them by their employers due to their social media communications and postings.  Reading 12.2 , “ Social Media, Employee Privacy and Concerted Activity: Brave New World or Big Brother? ,” discusses issues surrounding employee privacy and how social media posting by employees may fall with NLRA protection.

Broader employer policies regarding employee electronic communications have also been targeted by the National Labor Relations Board. Warehouse retailer Costco had a policy which prohibited employees from making defamatory statement deemed unlawful by the NLRB. Specifically, the policy stated, “Employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.” The NLRB found the prohibition to be too broad and designed to squelch employee concerted communications with each other. 19  As part of the same decision, the NLRB also struck down Costco rules that prohibited employees from (1) posting, distributing, removing, or altering any material on company property; (2) discussing “private matters of members and other employees … including topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”; (3) sharing, transmitting, or storing for personal or public use without prior management approval sensitive personal information such as membership, payroll, confidential credit card numbers, Social Security numbers, or employee personal health information. 20

To guide employers, the NLRB has prepared three separate updated social media reports, which describe all social media cases reviewed by the agency. These documents provide guidance to employers in formulating social media policies that will comply with federal labor laws. 21  Their two main advisories for employers are (1) employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and (2) an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. 22

Conclusion

Unions have a long and deep history in the United States and enjoy strong support under federal law. However, union membership is declining in America; unions in this country probably will not survive if they continue to display traditional adversarial relationships with employers. Traditional approaches to negotiation usually involved the union trying to gain concessions from management and winning the negotiation. To be successful in the future, unions must develop partnerships with employers and seek win–win outcomes to collective bargaining that strengthen both the union’s position and employees’ rights and enhance the performance of the organization. Rigid posturing by unions in attempting to maintain the status quo works against the many initiatives and innovations organizations develop as they attempt to respond to changes in their environments and remain more competitive.

Given the changing nature of organizations and work, unions clearly need to reinvent themselves. Unions need to consider that the jobs of today and those of the future are quite different from the jobs of the past. Increasing global competition, changing technology, the heightened pace of merger and acquisition activity, the move toward smaller businesses and autonomous divisions, and the increasing diversity in the workforce represent broad changes for unions in the United States. The jobs being created in our economy are more service- than manufacturing-oriented; are much more complex, multifaceted, and broadly designed; involve teams, cooperation, and working with others; and involve more self- or peer supervision than supervision by management. Countries such as Japan and Germany have extensive unionization and produce some of the highest quality, most technologically advanced products. Their unions facilitate worker involvement, development, and participation programs; also, the unions partner with employers in creating beneficial change rather than inhibiting change and attempting to ensure workers’ rights by maintaining the status quo.

As unions decline in number and stature, workers become less powerful. Without union representation, employee interests can only be advanced through increased government regulation of the employment relationship or through innovative and responsive HR programs that organizations initiate themselves. Increased legislation may ensure worker rights, but it can also inhibit organizational flexibility and change. Innovative HR programs can provide workers with benefits, but usually, the organization retains power and control over the workers, who maintain their individual status in dealing with separate issues with the employer. Legislation preserves rights and empowers workers to a limited extent, but it inhibits change. Organization-designed initiatives can promote change but still leave individual workers at a disadvantage when dealing with employers on issues of equity. Hence, policymakers need to take a critical look at the institution of collective bargaining to determine whether it has lived up to the ideals Congress established for it under the NLRA.

Very few unionized companies have developed effective worker participation programs because unions are interested in keeping workers insulated from management issues. Ironically, however, successful employee participation programs in nonunionized organizations have actually increased workers’ power and voice in dealing with management. Union leaders need to create a new model of worker representation if they plan to survive in the twenty-first century. This can only be done if union leaders rethink their roles and adopt collective-bargaining strategies that allow both the employees and employers to benefit. Union leaders need not only political and negotiating skills but also management skills in understanding the whole organization: strategic issues facing the employer and the organization’s environment. Instead of seeing themselves as adversaries to management, they should envision themselves as facilitators and consultants. Although employers clearly need to consider labor relations from a strategic perspective, union representatives must do so even more if they are to keep their unions viable for tomorrow’s organizations.

Critical Thinking

1.

With unionization on the downturn, why should an organization be concerned about labor relations?

2.

What benefits are received and what costs are incurred when workers unionize?

3.

Describe the process by which workers unionize.

4.

What are the possible outcomes of failure to reach consensus on a collective-bargaining agreement?

5.

Contrast the style of labor unions in the United States to that found in other countries.

6.

Does union diversification make unions stronger or weaker? How would you feel as an auto worker to see the United Auto Workers representing employees outside the auto industry?

7.

What rights and responsibilities do employers and employees have regarding the use of social media communications under the National Labor Relations Act?

Reading 12.1

8.

Assess the status of employer and union recruiter behaviors in union-organizing campaigns. How much access should union organizers have to employees? What new behaviors are likely from employers and union organizers in response to the actions of the other party?

Reading 12.2

9.

How can social media impact the rights of employees under the National Labor Relations Act? Can or should any restrictions be placed by employers on workplace discussions that take place through social media?

Exercises

1.

Locate a local unionized organization. Interview both a manager and a union employee to determine the level of satisfaction each has with the employment relationship. What types of union activity/inactivity contribute to these positions?

2.

Investigate one large union, such as the United Auto Workers, United Steelworkers, or Teamsters, in depth and then examine its member base and recent activity on behalf of its members. Does it appear that diversification has made this union more or less effective?

3.

Investigate the nature of collective bargaining in Australia, Canada, and Mexico and the countries that constitute the European Union and then compare and contrast the nature and state of collective bargaining in these areas as well as determine the implications this has for global business.

4.

Visit the Web sites for the AFL-CIO ( http://www.aflcio. org ) and Teamsters ( http://www.teamsters.com ). What programs does each union offer its members? What are the main issues each union appears to be pursuing? Do these programs and issues appear to be well matched to the needs of the U.S. labor force?

5.

Visit the Web site for the National Labor Relations Board ( http://www.nlrb.gov ). Of what value is this Web site for employers? Of what value is this Web site for union leaders?

6.

Design a social media policy for an employer that would optimally serve both the employers and the employee without running afoul of the National Labor Relations Act.

Chapter References

1.

Wikipedia. “2005 New York City Transit Strike,” available at  http://en.wikipedia.org/wiki/2005_New_York_City_transit_strike .

2.

Caudron, S., et al. “The Labor Movement to War,” Workforce, January 2001, pp. 27–33.

3.

McCartin, J. “PATCO, Permanent Replacement and the Loss of Labor’s Strike Weapon,” Perspectives on Work, 10, (1), Summer 2006, pp. 17–19.

4.

Bureau of Labor Statistics, available at  http://www.bls.gov/news.release/wkstp.nr0.html .

5.

U.S. Bureau of Labor Statistics, Union Members Summary, January 23, 2013. Available at  http://www.bls.gov/news.release/union2.nr0.htm .

6.

U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, Union Members, available at  http://stats.bls.gov .

7.

Ibid.

8.

Segal, J. A. “Labor Pains for Union-Free Employers,” HR Magazine, March 2004, 49, (3), pp. 113–118.

9.

NLRB v. Washington Aluminum Co. 370 U.S. 9 (1962).

10.

Smith, A. “Talk, Talk Talk About Unions,” Society for Human Resource Management, November 14, 2012. Available at  http://www.shrm.org/Pages/login.aspx?ReturnUrl=%2fhrdisciplines%2flaborrelations%2farticles%2fpages%2forganizing-discussions.aspx .

11.

Ibid.

12.

Linn, A. “Michigan’s Right-to-work Laws Will Ripple Across the U.S.” NBC News. Available at  http://www.nbcnews.com/business/economywatch/michigans-right-work-laws-will-ripple-across-us-1C7559684 .

13.

Wheeler, H., Klaas, F. and Mahony, D. Workplace Justice Without Unions. W.E. Upjohn Institute for Employment Research, 2004.

14.

Hirsh, S. “Unions Reach Everywhere for Members,” Baltimore Sun, January 25, 2004, p. ID.

15.

Newman, N. “Union and Community Mobilization in the Information Age,” Perspectives on Work, 6, (2), pp. 9–11.

16.

Ibid.

17.

Ibid.

18.

Lyncheski, J. E. and Heller, L. D. “Cyber Speech Cops,” HR Magazine, January 2001, 46, (1), pp. 145–150.

19.

Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, 358 NLRB No. 106 (2012).

20.

Ibid.

21.

NLRB, Office of the General Counsel, (Third) Report of the Acting General Counsel Concerning Social Media Cases (Memorandum OM 12-59) (May 30, 2012).

22.

Deschenaux, J. “NLRB Issues Second Social Media Report,” Society for Human Resource Management. January 31, 2012. Available at  http://www.shrm.org/legalissues/federalresources/pages/nlrbsocialmediareport.aspx .

READING 12.1: A Big Chill on a “Big Hurt:” Genuine Interest in Employment of Salts in Assessing Protection Under the National Labor Relations Act

Jeffrey A. Mello

Abstract

As union membership has continued to decline steadily in the US, union organizers have become more creative and vigilant with their organizing strategies. Chief among these strategies has been “salting,” a process by which unions attempt to organize employees from the inside rather than the outside. The Supreme Court has ruled that, under the National Labor Relations Act, “salts” cannot be discriminated against solely on the basis of their status as salts. This paper examines employer responses to resist salting efforts, including a recent decision by the National Labor Relations Board, which redefines the landscape under which salting activities can be conducted and considered protected activity.

Union membership has been declining steadily in the US since the US Bureau of Labor Statistics began tracking such numbers 25 years ago. At that time, 20.1% of the US workforce was unionized. By 2008, only 12% of workforce was unionized with a continuous steady decline having been recorded over that time. In 2008, public sector unionization stood at 35.9% while private sector unionization had declined to 7.4%, with both percentages having each lost a full percentage point over the preceding 3 years (Bureau of Labor Statistics 2008). This steady 25 year decline, however, was not a new trend but rather the continuation of a trend that pre-dated the Bureau of Labor Statistics tracking (Curms et al. 1990).

This decline can be attributed to a number of factors. First, the movement of many traditionally union-held jobs to developing countries overseas to take advantage of lower labor costs has been increasingly dramatically in recent years. Second, changes in the nature of the employment relationship, including the increased transience of the workforce and the erosion of the assumption, or presumption, of lifetime employment and the growing trend toward part-time and contract employment have impacted workers’ interest in being represented by unions. Third, the rise in undocumented or illegal workers who are unprotected or afraid to protest and/or organize has affected unions. Fourth, many of the jobs being created in our economy are in areas in which unions have no experience organizing, such as call centers, and involve workers who work from their homes or remote locations, rather than at the employer’s physical facility. Fifth, an increasing number of employers are resisting and fighting union organizing attempts more so than in the past. More than 75% of employers confronted with union organizing campaigns now hire consultants and an entire new industry of “union avoidance firms,” often consisting of former union leaders, has been established over the past three decades with anti-union success rates that generally exceed 90% (Maher 2005; Logan 2006). Sixth, unions themselves have been blamed for not keeping up with the times and failing to address the concerns of the fastest growing segments of the hourly labor force, including women, minorities and immigrants. Finally, the alleged antiunion doctrine and teachings of business schools have been cited as promoting and encouraging more adversarial relations between employers and unions (Gould 2008; Anonymous 2003).

Unions have responded to declines in membership by becoming much more aggressive in their recruiting tactics. One of the main strategies now being employed by unions is “salting,” a process by which union organizers attempt to organize a workplace internally. Originally implemented in the early 1970s in the construction industry (Raudabaugh 2008), salting involves a union representative applying for and subsequently obtaining employment with the organization whose workers are being targeted for unionization. Salting provides union organizers with more direct and regular access to employees who are the target of the unionization drive that would be realized by organizing from the outside. More recently salting activity has evolved into a means of political and economic warfare against employers as the basis for unfair labor practice allegation filings with the National Labor Relations Board (NLRB). This paper discusses the legal foundation upon which salting activities are based, the recent court activity and NLRB rulings in salting cases, subsequent management reactions to curtail salting activity and the judgments on the legality of such activities under the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et. seq.). These decisions have significant implications not only for unions as they attempt to maintain their viability but also for employers in ensuring that their management practices and actions do not run afoul of the NLRA.

Supreme Court Provides Protection to Salts Under the National Labor Relations Act

The Supreme Court first addressed salting in NLRB v. Town and Country Electric, Inc. (116 S. Ct. 459, 1995) where it found that paid union representatives who attempt to gain employment with a specific employer whose workers they are trying to organize cannot be discriminated against solely on the basis of their status as “salts.” Even though a salt may have no intention of remaining with the employer subsequent to a successful organizing drive, the Court found that union salts are considered “employees” under the NLRA and hence, are entitled to the full range of rights expressly provided to employees under the statute. As a result, any failure to consider or hire otherwise qualified salts, as well as the decision to terminate a salt once the salt’s intentions are made known or union organizing activities begin, solely based on salt status, is unlawful under the NLRA. While an employer has no per se obligation to hire a salt, no job applicant can be denied employment solely based on her or his status as a salt.

Town and Country constituted what was described as a “chess match” between employers and union organizers as each attempted to assert their rights under the NLRA (Mello 1998). A previous Supreme Court ruling, Lechmere, Inc. v. NLRB (112 S. Ct. 841, 1992), had strengthened management rights in resisting organizing activity by disallowing the practice of union organizers approaching employees on the employer’s property; in this case, the employer-owned employee parking lot. Salting served as a union response to the restrictions placed on union organizer access to employees in Lechmere and the Town and Country decision validated the use of salting as a tactic to organize workers. While Town and Country was a significant victory for organized labor in prohibiting employers from refusing to hire an applicant or subsequently terminate an employee who is attempting to organize its workers, the decision didn’t address the question of whether a salt can intentionally lie as part of her or his employment application process about his or her status as a salt and/or the intention to organize the workplace. More so, to the extent that Town and Country gave unions the upper hand in the “chess match,” the decision certainly gave employers incentive to respond by monitoring more closely the specific activities of union organizing efforts.

Intentional Misrepresentation in the Employment Application Process

In 2002 the Seventh Circuit addressed the extent to which a salt may lie about organizing intentions in Hartman Bros. Heating and Air Conditioning, Inc. v. NLRB (280 F.3d 1110, 2002). Hartman Bros., an Indiana-based heating and air-conditioning contractor, hired Starnes, who had stated on his employment application that he had been laid off from his previous job which paid him $11 per hour. The truth was that Starnes had taken a formal leave of absence from his position so that he might work for a union to assist with its organizing efforts. As the position at Hartman for which Starnes had applied paid only $8.50 per hour, suspicions might have been aroused if Starnes stated that he was still employed at a job which paid $11 per hour. Immediately upon being hired, Starnes informed Hartman Bros. that he was a union salt who intended to organize the company. Hartman responded by telling Starnes to leave the workplace without formally terminating him.

The job for which Starnes had applied and been hired required driving. Consequently, as part of his application Starnes was required to provide information about his driving history and stated that he had received one speeding ticket. Hartman Bros. then informed him that its liability insurer would need to check his driving record and that Starnes would be ineligible for employment if, as a result of this investigation, the insurer refused to provide liability coverage for his driving. Four hours after Starnes had been ordered off the premises for declaring his salting intentions, the insurer contacted Hartman Bros. and disclosed that Starnes had received not one, but two speeding tickets and that he would be denied coverage. Starnes was immediately discharged as a result of this misrepresentation and his disqualification for insurance coverage.

Around the time Starnes applied for a position with Hartman, Till also applied for employment. Till, however, was accompanied by a known union organizer, who declared that he was a union organizer and wore a baseball cap with the union’s logo. Hartman refused to hire Till.

The court found Hartman Bros. in violation of the NLRA in its refusal to hire Till as it found that this refusal was motivated solely by hostility toward unions. Hartman was ordered to cease and desist in its discriminatory practices against salts and other union supporters and to hire Till with backpay, in line with the Supreme Court ruling in Town and Country.

Starnes’ case was more complicated than Till’s. In justifying its decision to terminate Starnes, Hartman cited an Indiana law which prohibits any person from knowingly or intentionally making a false or misleading written statement in seeking employment. The court, however, found that if the state statute was being cited as a means for an employer to deny employment to an individual based on an applicant’s lies about salt status, the statute would be pre-empted by the National Labor Relations Act. Any lie about salt status would be immaterial to the hiring decision nor to an applicant’s qualifications for the job for which (s)he had applied and be based on a presumably erroneous employer assumption that the individual would not be a bona fide employee at any point in time. The court further found that criminalizing any applicant deception over salting intentions could only be a strong-arm means of discouraging salting, which would be further at odds with the Supreme Court’s decision in Town and Country. The fact that Starnes lied about his being laid off by his previous employer would not be grounds for dismissal as it was done solely to hide his salting intentions and the NLRA would preempt the Indiana statute that prohibits individuals from making false or misleading statements as part of an employment application.

The Seventh Circuit did concur with the earlier NLRB ruling that the discharge of Starnes based on his driving record was legitimate as the action was done pursuant to a company policy that had been uniformly applied to all employees without animus toward an employee’s participation with or attitudes toward unions. Hartman Bros. was, however, required to pay Starnes backpay, for the 4 h that had elapsed between his arrival at work and being sent home upon receipt of the insurance report. The court further ruled that the unfair labor practice committed by Hartman Bros. was not the discharge of Starnes but rather, sending him home and depriving him of the opportunity to begin organizing prior to the arrival of the insurance report.

Implications

Hartman Bros. dealt employers another post-Town and Country blow in finding that paid union organizers can lie on their job applications about their affiliation with unions as salts but cannot misrepresent facts about their credentials, skills or qualifications for employment. Lying about salt status is not material to a hiring decision because, under Town and Country, an employer cannot reject a job applicant solely on the basis of being a salt, union employee or union supporter. Any applicable state statutes which might make it illegal for applicants to lie or make misrepresentations on their employment applications are preempted by the National Labor Relations Act when any such lies or misrepresentations pertain to any union affiliation or activity.

The Hartman Bros. decision represented another victory for unions that further put employers on the defensive. Under Hartman Bros., unions have less difficulty placing paid organizers in the employ of companies they are attempting to organize. To prevent unfair labor practice charges from being levied, employers need to be sure that any criteria used for screening and selection of employees is objective, valid, essential for job performance and not based, in any way, on an applicant’s actual or perceived salt status. Although no cases have been heard relative to “perceived” salt status, the Seventh Circuit’s ruling in Hartman Bros. makes it likely that those applicants perceived to be salts would enjoy the same protection as actual salts. One weapon employers might have to counter salting in light of Hartman Bros. would be the implementation of a policy that prohibits any employee from simultaneously holding any full or part-time employment with another employer, particularly one within the same industry. Any such policy may or may not be upheld in a given jurisdiction based on local laws and general attitudes toward labor but its chances of success are more likely if enforced in a uniform manner toward all employees.

Employers Fight Back—Use of Preferential Hiring Criteria

The Seventh Circuit provided unions with a significant victory in Hartman Bros which affirmed their rights to use aggressive salting tactics as a means of organizing a workplace. As unions have gained the upper hand in their “chess match” with employers, employers have not been passive in fighting aggressive union organizing efforts. A post-Hartman Seventh Circuit ruling, Operating Engineers Local 150 v. NLRB (325 F.3d 818, 7th Cir, 2003), provided employers with a significant victory in their efforts to fight union salting tactics.

Local 150 involved Brandt Construction Company, an Illinois highway contractor, which provides municipal road construction, bridge building, concrete and asphalt paving, sewer and water utility work and demolition work. Brandt had utilized a long-term preferential hiring policy whereby employment applications submitted by current or former employees and those filed by individuals referred by current employees received preferential consideration over applications received from non-referred walk-in applicants. Brandt also gave preferential consideration to applicants referred by equal employment opportunity service providers under a prior conciliation agreement entered into with the US Department of Labor which required Brandt to increase the numbers of women and minorities employed on each job pursuant to federal, state and local equal employment opportunity regulations. Brandt allowed any of these applicants who receive preferential treatment to apply for employment at any time without an appointment while walk-in applications were only accepted on Mondays and only when the company was hiring.

These hiring practices and policies were formalized and posted at the time Brandt entered into its agreement with the Department of Labor. The posting noted that applications would only be “considered current for a period of two weeks.… After fourteen days the employment application expires and any individual interested in employment must complete a new application, if they are being accepted. We do not accept applications when we are not hiring.” The posting further specified that Brandt showed preference for applicants in the following descending order; (1) current employees of the company; (2) past employees with proven safety, attendance and work records; (3) applicants recommended by supervisors; (4) applicants recommended by current non-supervisory employees; (5) unknown (walk-in) applicants.

Shortly after the conciliation agreement and Brandt’s award of a large job, Local 150 sent some of its members to Brandt to apply for employment. The union members had been told by Local 150 to apply wearing union hats or other insignia and further instructed to indicate on their applications that they were salts and had been sent by the union for the express purpose of organizing Brandt. At the same time, Brandt received 32 referral applications as well as 20 additional non-union walk-in applications. Brandt hired a total of eight applicants, all of whom had been referred. For the remainder of that year, Brandt hired 29 additional applicants, 28 of whom were referrals, from a pool of 67 referrals. Consistent with posted policy, all new hires were offered employment within 14 days of their application.

In response to the hiring, Local 150 filed an unfair labor practice charge against Brandt with the National Labor Relations Board. The union alleged that Brandt had “changed, limited and made more onerous its hiring practices and procedures with the purpose of making it more difficult for applicants with pro-union sentiments to apply or obtain employment,” in direct violation of Section 8(a)(1) of the National Labor Relations Act. Several months later Local 150 filed an additional unfair labor charge against Brandt, alleging that the company refused to hire union members despite the fact that all of new hires at Brandt at that point had been former employees, referrals from current employees or supervisors or referrals from equal employment opportunity service providers and the company had also not accepted any walk-in applications. Local 150 later filed a third unfair labor charge which alleged that Brandt “has in effect and continues to maintain and apply a hiring practice of giving preference in hiring to referred applicants regardless of their skill level over walk-in or unknown applicants” and that “such policy is designed to discriminate, interfere and prevent union-affiliated applicants from being considered for employment ... and is designed to deter the effects of union organization in violation of the Act.”

The court found that while Brandt’s policy clearly made it more difficult for union applicants and salts to gain employment, it did not violate the NLRA as the manner in which all applicants had been hired, by referral, excluded all walk-in applicants, regardless of whether or not these individuals were affiliated with a union. In issuing this decision in favor of the employer the court relied on two earlier NLRB rulings. The first was Zurn/N.E.P.C.O. (329 N.L.R.B. 484, 1999), which held that a hiring policy which gives preference to current and former employees, as well as referrals by management, did not discriminate on the basis of union activities because “the policy does not on its face preclude or limit the possibilities for consideration of applicants with union preferences or backgrounds.” The second, Custom Topsoil, Inc. (328 N.L.R.B. 446, 1999), held that an employer did not discriminate on the basis of union membership when it differentiated between “stranger” and “familiar” applicants as this differentiation did not involve a per se distinction between union and nonunion applicants.

In issuing its ruling favoring Brandt, the court relied on the fact that Brandt applied its preferential hiring policy in a nondiscriminatory manner with applications submitted by all walk-ins rejected under a long-standing and consistently applied policy, absent of any direct anti-union animus. The court also noted and commended Brandt for improving its employment of women and minority applicants pursuant to its conciliation agreement with the Department of Labor. The court found that the critical factor that prevented Local 150 members from being hired was the fact that they freely chose to apply as walk-ins, traditionally the applicants of last choice for Brandt under its publicized policy. Brandt gave union applicants exactly the same consideration as all other walk-in or unknown applicants and union members were in no way prevented from obtaining a referral from a preferential applicant source if they so chose.

The NLRB ruling in Local 150 has found support in subsequent cases. The Board also ruled in favor of another employer who used preferential hiring criteria in Ken Maddox Heating and Air Conditioning, Inc. (340 N.L.R.B. No. 7, 2003). Maddox, an Indiana HVAC contractor, gave preference in hiring to applicants it had previously employed as well as to applicants referred by current employees and business associates, similar to Brandt. This long-standing policy was challenged when only one of 37 qualified overt union applicants was hired while 55 nonunion applicants were hired to fill 56 vacancies. The NLRB noted that because Maddox’s policy had been in place for some time, this fact invalidated the allegation that the policy was specifically implemented to counter a salting campaign. The Board further found that the policy “was not inherently destructive of employee rights” or “sufficient, by itself, to establish animus.” Citing Brandt as precedent the NLRB found that the general use of referral policies is a legitimate and justifiable employment practice. In Maddox the referral practice did not create a closed hiring system, which effectively screened out union applicants, nor was it applied in any kind of inconsistent or disparate manner.

Employers Find Additional Support for Their Use of Restricted Hiring Criteria

The victory for employers in Local 150 was only the beginning as other employers have succeeded in their attempts to fight union organization and salting through the use of restricted, rather than preferential, hiring criteria. Kanawha Stone  Company, Inc. (334 N.L.R.B. No. 28, 2001) involved an employer whose hiring policy consisted of an assessment of specific hiring needs on a particular job, based on applications filled out on the employee’s first day of work. The company did not maintain any applicant pool or hiring lists unless some kind of mass hiring was being conducted. All hiring was handled by superintendents at individual job sites rather than at the main office. Kanawha’s hiring criteria restricted hiring to three groups of individuals; (1) employees on temporary lay off, (2) former employees and (3) referrals from existing employees. Applicants not falling into one of these categories were not considered for employment. This long-standing policy had been in effect since the company’s inception. After a group of union members applied for employment at the main office, rather than at an individual job site, and who did not fit the above criteria were not hired, the union filed charges with the National Labor Relations Board.

Refusal to hire cases are considered under a burden-shifting scheme established by the Third Circuit in NLRB v. FES (A Division of Thermo Power; 301 F.3d 83, 3rd Cir., 2002). This case established the following criteria by which refusal-to-hire cases are analyzed:

To establish a discriminatory refusal to hire, the General Counsel must … first show: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirement of the position for hire, or in the alternative, that the employer has not adhered uniformly to such requirement, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that anti-union animus contributed to the decision not to hire the applicants. Once this is established, the burden will shirt to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation.

When the NLRB applied this criterion to Kanawha, it found that while union applicants were excluded from consideration for employment and some anti-union animus appeared to be present, Kanawha met its burden of proof by showing that it lawfully failed to consider the union applicants because they simply failed to meet any of its legitimate hiring criteria.

While Kanawha dealt with a flat-out refusal to hire, an employer in another case found a more specific means of excluding union members from consideration for employment. This criteria, refusal to hire based on wage incompatibility, was challenged in the NLRB ruling Kelley Construction of Indiana, Inc (333 N.L.R.B. No. 148, 2001). Kelley utilized the hiring criterion that new employees be accustomed to earning wages in line with those paid by Kelley. This policy ideally would allow Kelley to retain employees for as long as possible and minimize disruptions and costs incurred through excessive turnover. When Kelley refused to hire 27 union applicants based on this criterion, the union filed charges with the NLRB. The NLRB had previously established a precedent for wage disparity as a legitimate means of selecting applicants in the absence of evidence of disparate application to union members in Wireways, Inc (309 N.L.R.B. 245 1992). In Kelley, the Board applied the FES burden-shifting criterion in concluding that Kelley’s hiring decisions were made without regard to the prospective salts’ union affiliation because the salts did not satisfy the neutral and legitimate hiring criteria of wage compatibility.

Subsequent to Kelley, however, the NLRB was presented with another salting case involving wage incompatibility criteria in which it ruled that wage disparity was not a legitimate justification for denial of employment. In Contractors Labor Pool (CLP; 335 N.L.R.B. No. 25, 2001) the employer enforced a “30% rule,” which involved rejection of any applicant whose most recent wages differed by more than 30% from CLP’s starting wages. When challenged by a union, CLP’s 30% rule had been newly established and based on a study of worker retention which calculated the “break point” at which employees would be less likely to remain in the employ of CLP.

The NLRB found that while CLP had shown a legitimate business reason for adopting the policy that appeared not to be motivated by anti-union animus, the policy was “inherently destructive” of employees’ NLRA rights to organize as the net effect of the policy was to “disqualify automatically virtually all applicants who had recently earned union contract wages” which “directly penalizes those who have exercised their protected right to work in an organized workforce and imposes a formidable threshold barrier to protected organizational activity in the unorganized workforces of CLP and its contractor clients.” The Board considered this outcome analogous to the theory of disparate impact applied to anti-discrimination cases heard under Title VII of the Civil Rights Act of 1964. In disparate impact cases, all individuals are treated the same but the treatment results in different outcomes or consequences for different groups.

While the NLRB acknowledged that the 30% policy impacted both union and non-union applicants, this fact did not mitigate the “obvious and profound discriminatory effect” it had on those who rights were “expressly protected under the NLRA.” This was based on the finding that the policy, regardless of its intent, excluded virtually all applicants with union history while only excluding some applicants with nonunion wage history. The outcome was that the only way to gain employment with CLP was through prior employment with another nonunion employer.

Despite the fact that the NLRB accepted the employer’s legitimate business interest in employee retention as the basis for its wage compatibility policy, it held that a balancing act was necessary between the legitimate rights of CLP’s business interests and those of employees under the NLRA. Because the 30% rule was “not essential to the successful operation of CLP’s business,” the “destructive direct, broad, severe and enduring impact of this rule on employee rights” had to receive priority in the balancing act.

The Board did note that it was not making a blanket ruling in CLP on the legitimacy of any other wage compatibility rules “that may have a lesser exclusionary effect or that may be more narrowly drawn and essential to an employer’s business operation.” While Kelley provided affirmation for employer wage disparity policies, CLP refined that ruling by articulating the need for wage disparity cases to be examined on a case-by-case basis relative to balancing employer needs with employee rights. The end result is that while employers may be able to justify wage disparity employment screening policies, they clearly need to be able to show that such policies have a non-disparate impact on union members and/or prospective salts.

The Latest Chapter—Genuine Interest in Employment

As the courts and NLRB have ruled on wage disparity policies and clarified the criteria under which they should be considered, another issue has arisen regarding salting and employer responses to salting activities. This issue concerns whether prospective salts need to show a genuine interest in actually working for the employer to which they’ve applied in order to received protection of their salting activities under the NLRA.

In Phelps Dodge Corp. v. NLRB (313 U.S. 177, 1941), one of the first Supreme Court cases under the NLRA, it was held that the statute made it an unfair labor practice by an employer to discriminate against applicants for employment in addition to actual employees. As noted, the Supreme Court ruled in Town and Country Electric that job applicants who are also salts are considered “employees” under the NLRA and entitled to protection afforded by the statute, particularly section 8(a)(3) which prohibits an employer from “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” In other words, job applicants are de facto “employees” under the NLRA. Such protection has served as the foundation for salting activities by union organizers but a new NLRB ruling, Toering Electric Company (Toering Electric Company and Foster Electric, Inc., and Local Union No. 275, International Brotherhood of Electrical Workers, 351 NLRB No. 18, 2007), answered the question of whether an applicant needed to be genuinely interested in employment to qualify for protection under the NLRA.

In 1987 the President of the International Brotherhood of Electrical Workers (IBEW) announced an aggressive campaign to begin targeted nonunion employers for unionization via salting. Indeed in a videotaped speech produced and distributed at that time he encouraged local unions to unite with him in “driving the non-union element out of business.” In tandem with this, the IBEW issued a Construction Organizing Membership Education Training (COMET) manual, which provided guidance for local unions on how to conduct effective salting campaigns. The COMET manual emphasized organizing strategies that would cause employers to scale back their businesses, be forced to leave the union’s jurisdiction entirely or even completely go out of business. The driving force behind such economic outcomes would be the filing of unfair labor practices charges against employers at every opportunity. Such charges would impose immediate and usually substantial costs on employers as they attempted to defend themselves as well as disrupt the employer’s workforce and operations via a series of continuous and ongoing unfair labor practice allegations.

In 1994 Toering Electric became a target of Local 275 of the IBEW’s salting campaign. IBEW filed charges alleging that Toering refused to hire or even consider any union-affiliated individuals who applied for employment, in violation of section 8(a)(3) of the NLRA. In 1995 Toering agreed to settle the allegations by offering employment to six members of Local 275 but all six failed to show up for work. Prior to the settlement, Local 275 boasted in its newsletter that it succeeded in inflicting “a big hurt” on Toering’s business.

In 1996 Local 275 again targeted Toering via a salting campaign. The head of Local 275 submitted 18 resumes to Toering. Of these resumes, five contained no work history dates, five were “stale,” meaning that they were not current, outdated by as much as 6 years, and one was from one of the six individuals who had failed to show up for work when hired the previous year under the settlement agreement. Because the resumes were mostly stale or incomplete, Toering declined to hire any of the individuals whose resumes were submitted by Local 275. This action prompted another set of unfair labor practices charges to be filed by Local 275 against Toering. Toering Electric argued that the applicant salts should not be entitled to protection under the NLRA as they had no intention of ever working for Toering, as evidence by the fact that none of the applicants to whom employment offers had been made the previous year ever showed up for work. Instead, Toering argued that the only purpose of the charges was to induce economic harm on Toering and such behavior should not be protected under the NLRA.

In considering the merit of Local 275’s allegations, the NLRB considered that under Phelps Dodge, protection against discrimination is not limited to individuals who are actually employed by the employer and extends to job applicants as well. This interpretation was further reinforced by the Supreme Court in Town and Country Electric in 1995 in which the Court considered whether salts could receive any protection under the NLRA. In this latter case, the Court stated that the term “employee” did not necessarily exclude paid union organizers but stopped short of saying that paid union organizers enjoyed blanket protection under the NLRA. The NLRB was asked to determine in Toering whether in order for a job applicant to receive protection under the NLRA that such applicant have a genuine interest in employment with the employer to whom he had applied.

The NLRB found that Phelps Dodge was distinguishable from Toering as the applicants in Phelps Dodge were clearly interested in employment with the employer. The NLRB held in Toering that in order for a job applicant to receive protection under the NLRA the applicant had to be “genuinely interested in seeking to establish an employment relationship with the employer.” The NLRB found that the salt applicants at Toering had incurred no harm as the employment they were being denied was not something they actually sought and that the filing party, the union, had to prove an individual’s genuine interest in actually seeking to establish an employment relationship with the employer as a prerequisite for filing a charge. The Board found that it had an obligation to “allay reasonable concerns that the Board’s processes can be too easily used for the private, partisan purpose of inflicting substantial economic injury on targeted nonunion employers rather than for the public, statutory purpose of preventing unfair labor practices that disrupt the flow of commerce.” In considering the request for backpay for the rejected applicants, the Board found that Section 10(c) of the Act did not provide for any kind of punitive damages and was limited to effecting “a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.” Hence, there was no basis for any action or award to the salt applicants, even if Toering had been found to have committed an unfair labor practice in violation of the NLRA. The board found that “submitting an application with no intention of seeking work but rather to generate meritless unfair labor practice charges is not protected activity” under the NLRA.

Perhaps what is most significant about Toering is the fact that the Board realized that the automatic presumption of an applicant’s genuine interest in employment with an employer is a flawed assumption. Because it had not been previously necessary to prove this as the basis for filing a charge, unions could easily inflict “big hurts” on employers by engaging in such tactics used by Local 275. Employers would indeed incur significant costs and disruption of operations. More so, the resources of the NLRB ended up being diverted to cases and protracted litigation where there was no actual loss of the opportunity to work as applicants never intended to work for the employer in the first place. Hence, in Toering, the Board shifted the burden of the employer needing to prove that the applicant was indeed interested in employment back to the union and applicant in requiring that this evidence of “genuine interest” be submitted in justifying the unfair labor practice allegation. Hence, the Board felt the need to “abandon the implicit presumption that anyone who applied for a job is protected” under the NLRA. Most important for employers is that the employer’s motivation for engaging in the behavior that constitute the alleged discrimination act does not become relevant until the burden of proof has been satisfied that the applicant does indeed have a genuine interest in employment.

Implications

The Supreme Court decision in Town and Country Electric represented the beginning of a new era in labor relations in the US (Mello 2004). At the time of the decision, unions were suffering from declining memberships and finding little success as they attempted to employ more creative and aggressive organizing strategies. In its Town and Country decision, the Supreme Court validated the right of labor organizers to salt the workplace, handing organized labor a significant victory. As salting has become a more prevalent union organizing strategy, employers have attempted to counter salting by attempting to force salts to disclose their union affiliations if the salts have not blatantly done so and are attempting to organize in a more discreet manner. The Seventh Circuit handed unions and labor organizers an additional major victory in Hartman Bros., which will bolster union efforts to continue to test the extent of their NLRA support in the courts.

These pro-labor rulings have enticed employers to devise new strategies to prevent their workplaces from becoming unionized. Chief among these have been the use of preferential and restricted hiring criteria. Employers do not appear to be in violation of the NLRA when they employ preferential hiring policies as evidence in Local 150, where the Seventh Circuit affirmed an employer’s right to do so, as long as the policies were consistently applied to both union and nonunion applicants. Restricted hiring criteria cases, heard under the FES burden-shifting scheme, are a bit ambiguous. Initially affirmed by the NLRB relative to the right of an employer to exclude non-refereed applicants from hiring consideration, those cases involving wage disparity are less clear-cut as the Board has stressed the need to consider them based on their individual facts and circumstances.

Even though employers have enjoyed some success with the use of restricted hiring criteria, such policies should be implemented with caution. While both the courts and NLRB have found that referral-only policies do not directly violate the National Labor Relations Act, such policies may violate anti-discrimination in employment provisions of the Civil Rights Act of 1964. To the extent that an employer has a homogeneous workforce, referrals may logically come from the same population, which could expose an employer to a possible discrimination charge if non-hired salts were not part of this population. Under the theory of disparate impact, all employees/applicants are treated equally but the treatment results in different outcomes for different classes of individuals.

This may be particularly true when an employer has a racially homogeneous workforce. In such case, a union might simply target employers whose workforces are entirely Caucasian by using an African–American, Hispanic–American or Asian–American salt. While the consequences of using such a strategy have not yet been tested in the courts, the civil rights of individual salts might easily trump employer rights and responsibilities under the NLRA and ultimately impede an employer’s ability to use restricted hiring criteria and remain salt and union-free in the long run.

In Toering, the NLRB addressed the fact that union organizing campaigns in which prospective salts applied for employment had turned, in many instances, from those in which there was a genuine interest in organizing the employer’s workforce, which is protected activity under the NLRA, to adversarial processes which were designed intentionally to inflict substantial harm on employers. The shifting of the burden of proof from employer to applicant under Toering greatly alters the landscape under which salting activities can and will be conducted in the future. Union organizers, on the other hand, will now be forced to consider salting as originally intended; a means of organizing the employer’s workforce from the inside, an activity that is clearly within the protection of the National Labor Relations Act, rather than one that is used to coerce employers into responses that form the basis for unfair labor practices allegations. Ironically this “pro-employer” decision could greatly benefit unions. By realizing the limitations of the protection afforded to salting efforts to “gain entry” into an employer’s workforce can allow unions to fine-tune their campaign organizing strategies.

It is also probably safe to say that the issues confronted by the NLRA in Toering have not been put to rest. The case was decided by a slim 3–2 margin and in a lengthy and scathing dissent the minority points out several problems with the majority’s decision. First is the fact that Congress has expressly chosen not to amend the NLRA relative to the issue of genuine interest or intent of job applicants through a number of anti-salting bills which have been introduced since Town and Country. Second, and perhaps more notable, is concern over the difficulty of assessing “genuine interest,” given the multitude of factors which enter into a job applicant’s decision whether to accept or not to accept employment. Of course, the importance of such factors can vary from one applicant to another so certainly the issues addressed in Toering have not been fully resolved and give unions the opportunity to test the ambiguities inherent in the decision. While Toering constitutes a victory of sorts for employers there is no question that unions, many of whom are fighting for their livelihood, will be further resolved in their organizing efforts as a result of the decision. More so, the slim majority in this case could easily be overturned in the future by political appointees to the NLRB from another political party or even by those from the same party with different ideologies.

Organized labor in the US continues to find itself at a critical juncture. As jobs traditionally performed manually by union members have become automated, filled by undocumented/illegal workers, and/or moved overseas, unions have to be aggressive and creative in maintaining and expanding their membership bases if they are to survive. This will need to happen at the same time that many employers take actions to cut costs by eliminating positions held by union members and/or reducing benefit levels of unionized employees. The stakes are high for both sides with the parties continuing to see collective bargaining as a zero-sum game. Recent court decisions have provided both employers and unions added incentive to continue their adversarial behavior. As both sides test the limits of the NLRA, the courts and the NLRB will ultimately determine who wins not only individual battles but the ongoing war as ambiguous sections of the National Labor Relations Act are challenged interpreted. Ladies and gentlemen, the chess match is far from over.

Source: Employee Responsibilities and Rights Journal, 21, (1), 37–49 (2009). Reprinted by permission.

REFERENCES

Anonymous (2003). Special Report: Deja Vu?—Trade Unions. The Economist 367(8327). 77–80.

Bureau of Labor Statistics (2008). Report USDL 08-092 (issued 25 January, 2008).  http://www.bls.gov.cps .

Curms, M. A., Hirsch, B. T., & MacPherson, D. A. (1990). Union membership and contract coverage in the United States, 1983–1988. Industrial and Labor Relations Review, 44(1), 5–33.

Gould, W. B. (2008). LERA and industrial relations in the United States. Perspectives on Work, 11(2), 6–9.

Logan, J. (2006). The union avoidance industry in the United States. British Journal of Industrial Relations, 44(4), 651–676.

Maher, K. (2005). Unions’ new foe: Consultants. The Wall Street Journal, August 15, 2005, p. Bl.

Mello, J. A. (1998). Redefining the rights of union organizers and responsibilities of employers in union organizing drives. Society for the Advancement of Management Advanced Management Journal, 63(2), 4–9.

Mello, J. A. (2004). Salts, lies and videotape: Union organizing efforts, management responses and their consequences. Labor Law Journal, 55(1), 42–52.

Raudabaugh, J. (2008). National Labor Relations Board 2007 year in review: Fueling unions’ demand for Euro-centric labor lab reform. Labor Law Journal, 59(1), 16–25.

READING 12.2: Social Media, Employee Privacy and Concerted Activity: Brave New World or Big Brother?

Jeffrey A. Mello

Introduction

Advances in technology which allow tremendous portability and affordability of personal computers, personal digital assistants and tablet devices combined with the proliferation of social media networking sites have changed the way in which we communicate, both privately and publically. Individuals are now afforded the means to communicate with friends, co-workers and even strangers via networks that until very recently were not available. While e-mail has existed for several decades, new social media, particularly Facebook and Twitter, have not only greatly altered how both individuals and organizations communicate, but also changed the ways in which business is conducted as well as how people interact with each other in many of their personal and professional dealings.

As of December 2011, Facebook had more than 800 million active users, half of whom log on to the site on a daily basis and half of whom access Facebook through their mobile devices. 1  Roughly 200 million of these members are in the United States, representing two-third of the population. 2  Facebook is currently available in more than 70 languages around the world 3  and is estimated to reach 30 percent of global internet users. 4  Twitter has approximately 300 million users, 5  although participation in both sites continues to expand in both numbers of members and volume of communications.

The use of social networking is not limited to personal communications. 46 percent of information technology professionals believe that online social networking is an important business tool and 31 percent of that number considered it to be essential to contemporary business. More than 25 percent of organizations with 500 or more employees have developed some sort of social networking presences as a business tool. 6  A recent poll conducted of human resource professionals by the Society for Human Resource Management found that 68 percent of organizations were using social media for external communications, recruiting and marketing to engage customers, potential customers and potential employees. 7  Employers see tremendous benefit from social networking which include facilitating collaboration among employees, improved efficiencies in operations, facilitation of orientation and learning, internal brand building, employee and organizational development and faster development of new products and services. 8  However, 85 percent of IT professionals acknowledge that they are aware of employees visiting social networking sites for personal usage while at work. 9  The use of online social media has contributed to the further blurring of the separation between employees’ work and personal lives.

Traditional Employer Monitoring—E-mail and Internet Usage

A significant number of employers monitor the communications and online activities of their employees in the workplace. 10  In fact, 43 percent of employers were actively monitoring their employees’ internet use in 2007, the most recent year in which a reliable widespread survey was administered. 11  Most large employers have electronic communications policies that alert employees that the employer reserves the right to conduct such monitoring. E-mail activity is also widely monitored. 12  Most of this monitoring is accomplished not manually but electronically via software programs which can track time, content, size, attachments and recipients. 13  This tracking can also be used on personal e-mail accounts (such as those from AOL, yahoo and Google) which are accessed from the employer’s network. 14  96 percent of employers who monitor their employee e-mails track incoming as well as outgoing messages. 15  It is, however, more difficult for employers to monitor text and e-mail messages sent from employees’ personal personally-owned communication devices than from those provided by the employer.

There are many reasons why employers engage in monitoring the electronic communications of their employees. The first is to protect the employer from a variety of legal liabilities which could come about as the result of the content of such communications. Reporting requirements imposed under the Sarbanes-Oxley require the retention and storage of all e-mails related to financial transactions. 16  In the event of any kind of employee misconduct, the employer can be held liable if the employer knew of the conduct and did nothing about it as well as if the employer was unaware of the conduct but was presumed that the employer “should have known” about the conduct. 17  Such an obligation on the part of employers requires a heightened level of sensitivity toward the activities of individual employees which might necessitate the monitoring of communications taking place at work, on employer-owned equipment and networks and within the context of an employee’s job. Additional liability can be incurred through the sending and transmission of sexually explicit or provocative e-mails, with or without graphic images, and display of materials on pornographic websites which can serve as a basis for a sexual harassment lawsuit. 18

Second, employers also might engage in employee monitoring to determine the extent to which employees are actually doing their jobs during work hours and not engaging in distracting personal business. In addition to paying employees for work which is not being performed during regular working house, excessive personal use of employer networks and servers can result in lost productivity and efficiency for a work unit, data storage problems and/or slower network operations. 19

A third reason for employer monitoring rests with the fact that electronic media can be a means for disgruntled employees to transmit confidential files or provide access to secure parts of the employer’s website or intranet. 20  Employers need to ensure that confidential documents, files, information and/or trade secrets are not disseminated to those outside of the organization who have no legitimate business interests in accessing such information. 21  The challenge here is that electronic transmission of proprietary information is quick and relatively easy but can also be “undone” if detected in a timely manner, justifying the need for vigilant monitoring.

How widespread are these alleged transgression activities? A recent American Management Association survey found that 14 percent of employees admitted to e-mailing confidential or proprietary information about their employer its people, products and services to outside parties; 14 percent admitted to sending third parties potentially embarrassing and confidential company e-mail that is intended strictly for internal readers; 89 percent of employees admitted to using the office system to send jokes, gossip, rumors or disparaging remarks to outsiders; and 9 percent admitted using company e-mail to transmit sexual, romantic or pornographic text or images. 22

Despite the justifications for employer monitoring, there can be a significant downside to this activity. Employees can often view electronic monitoring by employers as an invasion of their privacy which serves to erode any trust relationship which exists between employees and employers. Eroded trust can have detrimental effects on employee morale, commitment, performance, retention and self-esteem. 23  Employees, however, can and do circumvent employer monitoring though the usage of personal e-mail accounts, rather than those of the employer, and/or use a variety of personal communications devices, such as their own laptop computers, cell phone, Blackberrys, i-Phones or other portable digital assistant devices to communicate during work hours for personal communications, web browsing, shopping, checking sports scores, pleasure reading or any other kind of personal activity. A typical supervisor may not have the time to monitor each subordinate to determine whether the device being used is owned by the employer or the employee. In addition, the portability of such devices can make them difficult to conceal and their similarity to the typical hardware provided makes personal usage difficult to determine.

28 percent of employers who monitor employee e-mail admit to having terminated one or more employees due to what was discovered as a result of monitoring. 24  In two–thirds of these cases the terminations were the result of inappropriate or offensive language, content or both. In other cases the dismissal was attributable to excessive personal use of the internet during working hours. 25

Legality and Privacy

Generally speaking, employer monitoring of employee communications is not only legal but also practical, given the nature and reach of electronic communications. E-mail monitoring has not been found to be unlawful, regardless of whether or not employees had been informed of company policy, 26  mainly because the employer usually owns the hardware that is being used for communications as well the network access on which the e-mail has been sent and received. Employer internet monitoring is generally protected because employees cannot expect any reasonable expectation of privacy relative to websites they visit while they are at work and being paid by the employer for their services. 27  In short, there is no statutory right to privacy afforded to employees regarding their employment-related electronic communications.

To date, courts have consistently held that employees do not have any reasonable expectation of privacy regarding online communication, including internet usage and work e-mail systems. 28  The early precedent-setting case regarding e-mail monitoring, Smyth v. Pillsbury, 29  was heard in 1996. The court found that employees have no reasonable expectation of privacy because e-mail communications are voluntary and employer’s interests in maintaining professionalism and preventing harassment in the workplace take precedent over any privacy expectations of employees. This reasoning was extended in another case, McLaren v. Microsoft, 30  where Michael McLaren, a Microsoft employee, had labeled some folders as “personal” on his computer and created private passwords by which he accessed them. The court found that the employer’s ownership of the computer and the network preempted any presumption or expectation of privacy on the part of the employee. The court further held that any alleged privacy claims were rendered moot when an e-mail was transmitted to another person, hence becoming public. 31

The Next Wave of Monitoring—Social Networking Sites and Search Engines

Social networking, as noted above, is the latest significant trend in personal communications. However, a significant number of businesses have embraced social networking sites as a critical means of communication, public relations, promotion and marketing and branding. Social media is also being used to communicate with employees as well as with prospective employees about job opportunities and the employment relationship in general.

The combination of employer business use of social networking combined with its popularity among individuals who use it for personal reasons creates two strong simultaneous forces driving the proliferation of social networking. Use of social networking sites by employees is easy and inexpensive. Similarly, monitoring of employees’ social network activities by employers is easy and inexpensive. No special technology or customized software program is needed for such monitoring. To conduct any kind of monitoring activity, an employer would only need to create a free account, even under a disguised identity, on a social networking site to gain access to the activities of any or all of its employees. Unless users of a social networking site restrict their personal account to “friends only,” the accounts they create and their content are publically available. Some employees are aware of the possibility of employer monitoring as 29 percent of employees report having become both more private and conservative in their social networking endeavors for fear of employer discovery and retribution. 32  This is an especially risky issue for employees as an employer can shield their identity by using a pseudonym allowing them to learn about employee’s off-work, personal life in a manner that the employee may not know who has actually gained access to the information the employee has posted.

Monitoring through the use of search engines is as equally quick, easy and inexpensive. Google or Yahoo searches, for example, can turn up information about employees which they employee may not have personally chosen to make public and/or information which was posted by others. Much of this information can be potentially embarrassing, such as information about legal proceedings. 33  However, it is probably much easier for an employer to find discomforting information about an employee on a social networking site as the purpose of such sites is to share information which is personal and sites such as Facebook seem to encourage individual self-expression.

Employers face an ethical question relative to whether, as part of due diligence in the hiring process, they should scour online networks and sources to discover information about prospective hires. A 2011 survey of HR executives conducted by the Society for Human Resource Management found that 26 percent of organizations were using search engines and 18 percent were using social networking sites to screen, rather than recruit, 34  applicants for employment. Of this group, 15 percent were using information gathered via search engines to disqualify candidates and 30 percent had used information found on social networking sites to disqualify an applicant. 35  However, a more general survey found that 95 percent of employers admitted to using social media sites to discover additional information about job applicants. 36  A third survey found that 45 percent of employers research social media sites as part of the routine screening of job applicants. 37

While the survey results vary, it is very clear that employers are utilizing search engines and social media to discover information about job applicants and, in some cases, use this information to screen out applicants. Arguments in favor of utilizing such practices would include the desire to ensure that the applicant provides the best “fit” with the company, particularly in light of how expensive recruiting activities can be. Many employers condone, if not encourage, hiring managers and human resources personnel to conduct such due diligence, feeling that the practice is certainly not unlawful and, given potential costs and risks associated with hiring the wrong candidate, an ethical if not necessary practice. Privacy advocates would argue that visiting the Facebook profile of a job applicant as part of the employer’s screening of potential employees is both unnecessary and an invasion of privacy.

Once a job applicant becomes an employee, the appropriateness of such searches becomes even more ambiguous. While the same information obtained via social networking and search engine monitoring may be available post–hire as well as pre-hire, one could question the motivation of an employer’s searches into existing employees’ private personal lives outside of work. Once the practice became public within the workplace, such post-hire searches might greatly affect employee morale and trust 38  as in most cases an employer might monitor an employee’s social networking activities and posts as a means of collective evidence to use against an employee for disciplinary purposes rather than simply wanting to get to know the employee better.

A number of recent situations have illustrated the consequences for employees of employer monitoring of employee activity online. After thirteen members of the Virgin Atlantic Airlines cabin crew expressed their impressions of employer, its planes and passengers as part of a Facebook group Virgin terminated them. 39  The airline could not find any “justification for using [Facebook] as a sounding board for staff of any company to criticize the very passengers who ultimately pay their salaries.” When Boston-based Anglo Irish Bank employee Kevin Colvin told his supervisor he had to miss work due to a family emergency in New York, his supervisor checked his Facebook page the following day and discovered that Colvin had posted Halloween party pictures from the previous night with Colvin dressed as a green fairy holding a wand and can of beer. Colvin was fired for lying after his supervisor forwarded the photo to everyone in the office. 40

Mario County FL Sherriff’s office fired deputy Brian Quinn after Quinn posted a picture of himself on his MySpace page in full uniform with comments about women’s breasts, binge drinking and nude swimming for “conduct unbecoming of an officer.” 41  Dan Leone, a Philadelphia Eagles parking lot attendant, was terminated after six years of service when he posted derogatory comments on his Facebook page which criticized the Eagles for their failure to resign a player. 42  In yet another case, a server at Brixx Pizza in North Carolina berated a couple who left her a small tip on her Facebook page, mentioning her employer (Brixx) by name, and was fired as a result. In defending its action, Brixx claimed a violation of company policy against disparaging customers and criticizing the restaurant. 43

These incidents illustrate the fact that issues related to work and employment which were previously “vented” among co-workers at the water cooler, in the cafeteria or in the rest room and now being vented publically online for a much wider audience. A disgruntled employee doesn’t have to wait to get back to the office to express her or his feelings. Online networks provide an immediate opportunity to deal with issues and express feelings. While such public venting allows for spontaneity of expression, posts also cannot often be retracted and may continue to exist and be accessed long after the employee has “calmed down” or even had a change or heart about any specific incident. More so social network monitoring of existing employees can allow employers to monitor activities and discover personal information which may or may not be work-related. The ethical issue for employers is that much of which may be discovered online is not related to job performance and how is such information to be used once it is discovered.

Where We Stand

As the above discussion illustrates, the American legal system has not kept up with the technological advances which have greatly altered how we communicate. The creation of new communication media which were previously unavailable and the availability of the means to monitor the usage and content by which people communicate raise the issue of the appropriateness of employer monitoring.

The only existing law which impacts communications, the Electronic Communications Privacy Act (ECPA), 44  was enacted in the 1980s in response to the kinds of electronic communications which were being utilized at that time. Title I of the EPCA 45  addresses electronic communications solely from the perspective of the interception of wire and aural messages. Despite the fact that e-mail was in its earliest stages of development at the time the EPCA was passed and social networking as we know it was non-existent, federal court decisions have applied the terms and conditions of the EPCA to e-mail. However, Title I provides for the express exemptions from the statue communications related to the normal course of business as well as those conducted on proprietary communication networks and systems. Consequently, employers have prevailed in every case in which employees have objected to monitoring as a violation of their privacy rights. 46

Hence, employees currently enjoy no specific privacy rights in their communications and very limited protection against employer monitoring (unless such monitoring was targeted at a specific employee who alleges the monitoring was based on protected class status) and the possible consequences employers take in response to what they discover as part of any monitoring. Courts have also not overturned firings which have been based solely on derogatory postings on social networking sites. Employers have generally not been liable for adverse employment actions resulting from employee postings on social media sites unless the employer gained access to the information in violation of the website’s agreed terms of usage or without consent. 47  However, because social networking is still a relatively new phenomenon in personal, mass public communication, it is understandable that no specific laws have yet been developed regarding employee and employer rights and responsibilities.

National Labor Relations Act and Concerted Activity

Prior to the advent of social networking, the first case which tested the extent to which electronic communication by employees was protected under any federal law involved an online bulletin board system. In Konop v. Hawaiian Airlines, 48  the Ninth Circuit Court of Appeals held that an online bulletin board, established and maintained by a company pilot, used to discuss and criticize the employer’s relationship with the employee union was protected concerted activity under the Railway Labor Act (RLA). Because the Konop court relied upon National Labor Relations Act (NLRA) in reaching its decision, which is typical in RLA cases, the Konop holding was considered precedent for interpretation of the NLRA relative to this issue. 49

Given the advent of social networking and online employer monitoring of employees, the question has been raised as to whether the NLRA might provide employees some kind of protection against employer actions taken in regard to employee postings online. At this juncture, several complaints have been filed with the National Labor Relations Board (NLRB).

The first complaint was filed with the NLRB in November 2010. Danwmarie Souza, a union member/employee of the American Medical Response of Connecticut (AMR) ambulance service, posted negative comments about her supervisor on her Facebook page from her home computer after a work request she submitted had been denied. When some of her co-workers posted supportive comments in direct response to her post, Souza posted further negative comments and was subsequently fired for alleged violation of the AMR’s internet policy which prohibits employees from posting anything about AMR without express permission. While the employer stated that Souza was fired due to “multiple, serious complaints about her behavior,” the NLRB reasoned that because Souza was communicating with her co-workers about her supervisor, even though it was in a public forum which could be accessed by others, she was engaging in concerted activity rather than being disloyalty to her employer. Concerted activity is protected under Section 7 of the NLRA, which prohibits employers from interfering with employees’ efforts to work together to improve the terms and condition of their workplace and their employment. There was no court ruling in the case as the parties settled in February 2011. As part of the settlement AMR agreed to revise its company policies regarding employees’ rights to communicate with each other about work-related matters. 50

However, in April 2011, the NLRB did not find unlawful another employer’s decision to fire an employee because of inappropriate post to his Twitter account. When the Arizona Daily Star newspaper discovered tweets from one of its reporters which made sarcastic and derogatory comments about copy editors the employee was told by the managing editor that he was prohibited from airing grievances or commenting publically about the Daily Star. Subsequent to this incident the reporter posted additional sarcastic tweets which criticized both the Tucson police and the reporting of a local television station. When the reporter was terminated he filed a complaint with the NLRB who held that the reporter’s behavior was neither protected nor concerted activity under the NLRA because it did not related to terms and conditions of employment nor did it seek to involve other employers on matters related to employment. While the associate general counsel of the NLRB recommended that the charge be dismissed, he did note that the employer had made statements which could be interpreted as impeding employees’ Section 7 rights, specifically noting that the managing editor had told the employee that he was not allowed to tweet about anything related to work. 51

In the AMR example, it is noteworthy that Souza was part of a unionized workplace. Employers need to remain cognizant, however, of the fact that nonunionized employees enjoy the same rights under the NLRA as those who already belong to unions, including the right to communicate with coworkers about working conditions in a concerted manner. In May 2011, the NLRB announced that it was suing Hispanics United of Buffalo, a nonprofit agency which provides various social services to low-income clients. After an employee of Hispanics United alleged that the organization’s employees did not do enough to assist its clients, five co-workers responded to this statement, through Facebook-postings, by criticizing their workloads and working conditions. Hispanics United terminated the Facebook-posting employees on the grounds of harassment of their co-worker who made the initial statement. The NLRB argued that the Facebook postings constitute protected concerted activity under Section 7 because they pertain to terms and condition of employment. In September 2011 an NLRB administrative law judge ruled against the employer, accepting the MLRB argument, and ordered that the five employees be reinstated with back pay. 52

Section 7 of the NLRA provides all covered employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It is critical however, that in order to receive protection that the employee’s actions or communications not be simply on her or his own behalf nor should the employee disparage the employer, display blatant insubordination or distribute or publicize confidential information to which the employee is privy. 53  Section 7 protection would not be afforded in such instances.

Regardless of whether a workplace is unionized or nonunion, any employer policy which attempts to impede employees’ abilities and rights to communicate outside of the workplace regarding wages, hours, supervision or working conditions would be subject to a Section 7 challenge. Such protected concerted activity could include online discussion boards, as noted in the Konop case, or even the case of a single employee who discusses issues related to supervision. Although there has been little commentary about how social media could be used as a means of organizing workplaces, the NLRB interpretation issued in AMR could easily be seen by union organizers as a new means to communicate with workers who are being recruited by the union for representation. Both pro-union employees and organizers themselves are afforded opportunities to communicate with workers via social media and networks that were previously unavailable, more cumbersome and/or more costly. Social networking has changed the way in which we communicate and this is particularly so for employees who wish to express themselves about working terms and conditions which apply to others. Given the above discussion it seems inevitable that social media will be embraced by labor unions as a means and strategy for not only communicating with existing union members but, perhaps more important, a means to communicate with employees of companies which are being targeted for organization.

Summary

Social networking is here to stay as not only have individuals embraced it as a vital means of communication, organizations have similarly embraced it as a vital 21st century means of marketing and promotion and conducting business. The question remains as to whether employees are entitled to a reasonable amount of privacy in their personal, public communications on social networking sites. At this juncture, unless such postings can be considered concerted activity, employers are free to take action against employees based on postings which do not sit well with the employer. However, the NLRB is apparently readily to vigorously investigate any allegations of alleged suppression of or intimidation related to concerted activity but even then there is some presumption of a duty of loyalty to the employer and limitations as to how far an employee can go.

While numerous states have passed laws which restrict employer actions which are the result of an employee’s legal off-duty conduct, there is no body of law which addresses the issue of employer monitoring of and resultant discovery of information posted on social networking sites. Employers can be fair-minded in developing policies which balance business needs and any reasonable perceived privacy expectations employees could have but in the interim, until such case law is developed, the only protection employees potentially have against employer actions based on discovery of social networking posts is the defense of protected concerted activity under the NLRA. However, while the NLRB has been quick to file suit in such cases, no court has yet to rule on this interpretation. In the meantime, employees need to use discretion and judgment with their posts, realizing the perpetuity issue associated with hitting the “send” or “enter” button on the keyboard.

Source: © 2012 by Jeffrey A. Mello

ENDNOTES

1. Wikipedia,  http://en.wikipedia.org/wiki/Facebook , retrieved 6 January 2012.

2. New York Times,  http://topics.nytimes.com/top/news/business/companies/facebook_inc/index.html , retrieved 6 January 2012.

3. Wikipedia, supra note 1.

4. Jeremiah Owyang, A Collection of Social Networks Stats for 2010,  http://www.web-strategist.com/blog/2010/01/19/a-collection-of-social-network-stats-for-2010/ , retrieved 6 January 2012.

5. Wikipedia,  http://en.wikipedia.org/wiki/Twitter , retrieved 6 January 2012.

6. Lauren Leader-Chivee and Ellen Cowan, Networking the way to success: online social networks for workplace and competitive advantage,  http://findarticles.com/p/articles/mi_6768/is_4_31/ai_n31909656/ , retrieved 6 January 2012.

7. Society for Human Resource Management, SHRM Survey Findings: The Use of Social Networking Websites and Online Search Engines in Screening Job Candidates, 25 August, 2011.

8. Leader-Chivee, supra note 6.

9. Sarah Perez, A Growing Acceptance of Social Networking in the Workplace,  http://www.readwriteweb.com/enterprise/2009/07/a-growing-acceptance-of-social-networking-in-the-w.php , retrieved 6 January 2012.

10. See Am. Mgmt. Ass’n & The ePolicy Inst., 2007 Electronic Monitoring & Surveillance Survey 4 (2008), available at  http://www.plattgroupllc.com/jun08/2007ElectronicMonitoringSurveillanceSurvey.pdf  (surveying employer monitoring practices in various areas such as the Internet, e-mail, computer usage, etc.)

11. Id. at 1.

12. Id. at 5 (stating that twenty-six percent of employers monitor all employees’ e-mail accounts and seventeen percent of employers only monitor the e-mail accounts of employees in selected job categories).

13. Id. (reporting that seventy-three percent of all employers that monitor employee e-mails do so via software monitoring programs).

14. Online Spying: Remote Computer Spyware Software,  Online-Spying.com ,  http://www.online-spying.com/webmail-spy.html  (last visited Oct. 7, 2010). See also Rachel Konrad & Sam Ames, Web-Based E-mail Services Offer Employees Little Privacy, cnet News (Oct. 3, 2000),  http://news.cnet.com/2100-1017-246543.html  (stating that, “unfortunately, security experts say many employees would be surprised to know that Web-based email services also offer little privacy. Messages sent via a Yahoo or Hotmail account … are just as accessible [as employer-created e-mail accounts] to nosy employers.”).

15. Am. Mgmt. Ass’n & The ePolicy Inst., supra note 10, at 1.

16. Carolyn Holton, Identifying disgruntled employee systems fraud risk through text mining: A simple solution for a multi-billion dollar problem, 4 Decision Support Systems, 46, 853–864 (2009).

17. Christopher Pearson Fazekas, 1984 Is Still Fiction: Electronic Monitoring In the Workplace and U.S. Privacy Law, 15 Duke L. & Tech. Rev. 1-16 (2004).

18. See, e.g., Blakey v. Cont’l Airlines Inc., 751 A.2d 538, 543–44 (N.J. 2000) (discussing the facts of a sexual harassment case filed by a female airline pilot claiming, among other things, that her coworkers posted sexually explicit comments about her on Continental Airlines’ online bulletin board).

19. See, e.g., Lisa Scott & Ross Tate, Monitoring Internet Usage—Spring 2010, Ass’n of Local Gov’t Auditors (2010),  http://www.governmentauditors.org/index.php?option=com_content&view=ar ticle&catid=47:accounts&id=594:monitoring-internet-usage-spring-2010&ltemid=123  (reiterating that employee Internet use for personal reasons can cause “[b]andwidth and storage shortages [sic] [particularly] from peer to-peer [sic] file sharing and audio/video streaming.”); and William P. Smith and Filiz Tabak, Monitoring Employee E-mails: Is There Any Room for Privacy? 23 Academy of Management Perspectives, (4), 33–48 (2009).

20. See, e.g., Jared A. Favole, Ex-Bristol-Myers Employee Charged with Stealing Trade Secrets, Barclays Latitude Club (Feb. 3, 2010),  http://www.barclays.com/latitu-declub/er_gr_global_news_article.html?ID_NEWS=133949142  (discussing accusations against a Bristol Myers’ technical operations associate for allegedly stealing company trade secrets in order to form a competing company in India); Elinor Mills, Microsoft Suit Alleges Ex-Worker Stole Trade Secrets, cnet News (Jan. 3, 2009),  http://news.cnet.com/8301-10805_3-10153616-75.html  (stating that an ex-employee “allegedly downloaded confidential documents onto his company-issued laptop … and then allegedly used a file-wiping program and a ‘defrag’ utility designed to overwrite deleted files in order to hide the tracks.”).

21. Smith and Tabak, supra note 19, at 34.

22. Laura P. Petrecca, More employers use tech to track workers, USA Today, 17 March, 2010.

23. See, e.g., Mia Shopis, Employee Monitoring: Is Big Brother a Bad Idea?,  SearchSecurity.com  (Dec. 9, 2003),  http://searchsecurity.techtarget.com/news/interview/0,289202,sid14_gci940369,00.html  (quoting an expert in electronic monitoring who stated that “[e]mployee monitoring is a bad idea ... when it’s used for Big Brother and micromanagement purposes. Organizations would be better off not doing it if they’re going to scrutinize their employees’ every move. If it creates a morale problem (and it will if it’s not handled properly) all of its value is diminished.”). More generally, employee monitoring can have the following negative effects: 1. An employee may suffer loss of self-esteem if she interprets the monitoring to indicate a lack of trust in her.; also, Smith and Tabak, supra note 19, at 43.

24. Am. Mgmt. Ass’n & The ePolicy Inst., supra note 10, at 1.

25. Id. at 8–9.

26. Encouragingly, seventy-one percent of employers monitoring employee e-mail notify such employees prior to any monitoring. See id. at 5 (stating that eleven percent of employers do not notify employees while another eighteen percent do not know whether e-mail monitoring took place).

27. See, e.g., Doe, 887 A.2d at 1167 (upholding an employer’s Internet monitoring policy, questioning whether, “with actual or imputed knowledge that Employee was viewing child pornography on his computer, was defendant under a duty to act, either by terminating Employee or reporting his activities to law enforcement authorities, or both?” and concluding that such a duty exists).

28. Tanya E. Milligan, Virtual Performance: Employment Issues in the Electronic Age, 38 Colorado Lawyer (2), 29–36 (2009).

29. 914 F. Supp. 97, 100 (ED Pa. 1996).

30. 1999 WL 339015, 1999 Tex. App. LEXIS 4103 (Tex. App.-Dallas May 28, 1999).

31. Michael Rustad and Sandra R. Paulsson, Monitoring Employee E-Mail And Internet Usage: Avoiding The Omniscient Electronic Sweatshops: Insights From Europe, 7 University of Pennsylvania Journal of Labor & Employment Law, 829–904 (2005).

32. See, e.g., Deloitte, Social Networking and Reputational Risk in the Workplace 4 (2009), available at  http://www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/us_2009_ethics_workplace_survey_220509.pdf ., at 12.

33. See, e.g., Corey A. Ciocchetti, The Eavesdropping Employer: A Twenty-First Century Framework for Employee Monitoring, 48 American Business Law Journal, (2), 285–369 (2011).

34. A different survey, also conducted by the Society for Human Resource Management in 2011, found that 56% of organizations use social media sites to recruit applicants, with 95% using Linkedin, 58% using Facebook and 42% using Twitter. This 56 % represented an increase from 34% just three years earlier in 2008. SHRM Research Spotlight: Social Networking Website and Staffing,  http://www.shrm.org/Research/SurveyFindings/Documents/Social%20Networking%20Flyer_FINAL.pdf, retrieved 6 January 2012 .

35. Society for Human Resource Management, supra note 7.

36. Alexis Madrigal, What You Shouldn’t Post on Your Facebook Page If You Want A Job,  http://www.thea-tlantic.com/technology/archive/2011/10/what-you-shouldnt-post-on-your-facebook-page-if-you-want-a-job/246093 , retrieved 6 January 2012.

37. Damian R. LaPlaca and Noah Winkeller, Legal Implications of the Use of Social Media: Minimizing the Legal Risks for Employers and Employees, 5 J. Bus. Tech L. Proxy 1 (2010),  http://www.law.umaryland.edu/academics/journals/jbtl/proxy/5/5_001_LaPlaca.pdf , at 8.

38. Ciocchetti, supra note 33.

39. John Browning, Employers Face Pros, Cons with Monitoring Social Networking, Houston Bus. J. (Feb. 27, 2009),  http://www.bizjournals.com/houston/stories/2009/03/02/smallb3.html .

40. Id.

41. Id.

42. Kabrina Krebel Chang, Facebook Got Me Fired, Builders and Leaders,  http://www.bu.edu/builders-leaders/2011/05/18/facebook-got-me-fired/34-35 , retrieved 6 January 2012.

43. Id.

44. Pub. L. 99-508,Oct. 21, 1986, 100 Stat. 1848, 18 U.S.C. §2510-2522.

45. Stored Communications Act, 18 U.S.C. §§ 2701-12

46. Smith and Tabak, supra note 19, at 38.

47. LaPlaca and Winkeller, supra note 36, at 7.

48. 236 F.3d 1035 (9th Cir.2001).

49. Scott Grubman, Think Twice Before You Type: Blogging Your Way to Unemployment, 42 Georgia Law Review 615 (2008); Carson Strege-Flora, Wait! Don’t fire that blogger! What Limits Does Labor Law Impose on Employer Regulation of Employee Blogs?, 2 Shidler J. L. Com. & Tech. 11 (Dec. 16, 2005), at < http://www.lctjournal.washington.edu/Vol2/a011Strege.html >

50. Chang, supra note 41, at 35.; Maria Greco Danaher, NLRB Settles Complaint Based on Facebook Posts as ‘Concerted Activity’,  http://www.shrm.org/LegalIssues/FederalResources/Pages/NLRBSettlesComplaintFacebook.aspx , 9 February 2011, retrieved 6 January 2012.

51. Allen Smith, NLRB: Discharge of Employee for Inappropriate Tweets Was Lawful,  http://www.shrm.org/LegalIssues/FederalResources/Pages/NLRBInappropriateTweets.aspx , 13 May 2011, retrieved 6 January 2012.

52. Maria Z. Stearns, NLRB Actively Engaged in Examining Employee Social Media Use,  http://www.rutan.com/files/Publication/46b9dcfa-2034-4c1f-a7ce-5907c824a6de/Presentation/PublicationAttachment/e806e8b8-2e0d-48ae-9ed3-5f095a222d18/Society%20for%20Human%20Resource%20Management.pdf , 16 September 2011, retrieved 6 January 2012

53. Nancy King, Labor Law for Managers of Non-Union Employees in Traditional and Cyber Workplaces, 40 American Business Law Journal, (4), 827–883 (2003); Robert Sprague, Fired for Blogging: Are There Legal Protections for Employees Who Blog?, 9 U. Pa. J. Lab. & Emp. L. 355 (2007).

Copyright of Labor Law Journal is the property of CCH Incorporated and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s express written permission. However, users may print, download, or email articles for individual use.