The National Labor Relations Board Signals Expanded Union Access to Physical Premises and Electronic Communications

In 2011, more is likely to be seen of organized labor, even as the number of employees belonging to unions in the private sector workforce hovers at approximately 7.1 million, or 6.9 percent. The impact of organized labor in the economy, the media, and political discussion may not fully take account of the fact that the percentage of union membership in the private sector during 2010 compares unfavorably to that in the public sector (7.6 million workers comprising 36.2 percent). Moreover, independent contractors (estimated by the Bureau of Labor Statistics in 2005 at 10.3 million, or 7.4 percent of the total U.S. workforce) outnumber the private sector unionized workforce.

It remains to be seen whether unions will have elevated success in organizing and winning elections, and at the bargaining table. But there are clear indications that the current National Labor Relations Board ("NLRB") is considering actions that would aid unions by removal of previously respected barriers to employer property and communications systems. Some of those barriers are physical, and some are electronic.

The door to electronic access was opened wider with an October 2010 decision in which the NLRB determined that the traditional posting of remedial notices in "conspicuous" places where notices to employees customarily are posted should be interpreted to include electronic communications platforms: e-mail, intranet, Internet, and other electronic means customarily used by an employer in communicating with its employees.

Electronic dissemination of remedial orders may be a precursor and prelude to expanded NLRB resort to electronic communications systems and networks. Already in the pipeline is NLRB consideration of the extent to which employee expressions on social networks constitute protected activity. And the NLRB's technological outreach is further evidenced by its invitation in a pending case "for all interested parties to file briefs regarding the question of what legal standard the Board should apply in determining whether an employer has discriminated against nonemployee union agents seeking property access." While immediate attention may focus on "access," the operative word going forward may be "property," as that term is reexamined and updated in an environment that is increasingly electronic.

A physical backdrop to the NLRB's exploration of new boundaries and contours for electronic property and space is its August 2010 decision involving a union's protest that construction contractors performing work at certain sites were paid substandard wages and benefits. At two medical centers, 16-foot-long banners declared "SHAME," while a banner at a restaurant urged customers not to eat there. The NLRB held that such displays are not coercive and, therefore, not unlawful. The bounds for extrapolating the NLRB's latest stance on bannering to electronic media are yet to be explored.