Let’s start with a few truisms. Unions seeking to organize workers need to communicate with the employees. An employer’s computers represent ready means of interacting. Employers are not often keen on facilitating union activity.
An issue that has been litigated more than once, and again recently, is this: Must employers permit use of their IT equipment for union communications? A 2014 decision of the National Labor Relations Board held that the answer is yes, employees do have a right to use employer-owned equipment for union-related purposes. But management was not happy and challenged that decision. It was recently reversed. Employers can now prohibit use of their technology equipment for union activity.
This latest case involves the Rio Hotel & Casino in Las Vegas in a dispute with the International Union of Painters and Allied Trades. The Rio’s employee handbook prohibits workers from using the employer’s computers to send “nonbusiness information” and to “solicit for ... advancement of personal views.” The union complained that communication with comrades was complicated without the capability to connect via company computers. To bolster its position, the union noted the prevalence of email in modern office life and the decreasing cost of data storage.
The hotel responded that the union and the 2014 ruling understate an employer’s property interests in its technology. While acknowledging that computers provide a convenient and efficient method for circulating data, the hotel noted that unions have other ways to reach workers. Previous cases have upheld the right of unions to solicit employees face-to-face and distribute literature at the workplace during nonworking time. Indeed, restrictions on these activities are, by law, presumptively unlawful. Further, noted the Rio, most employees today have access to smartphones with email and social media capabilities.
This time the NLRB reversed its 2014 decision and agreed with management. Workers and unions no longer have a right to use employers’ computers for dissemination of union information.
Note: An exception exists where employees work at different sites and face-to-face interaction between union and worker is not viable. For those limited circumstances, employer property rights must yield to employees’ rights.
Karen Morris is a lawyer, municipal judge and Distinguished Professor at Monroe Community College in Rochester, N.Y., where she teaches hospitality law.