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 totalU.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.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.