LMAO: Labor Movement Already Online, while the National Labor Relations Act is stuck in analog
In 2018, two Apple repair technicians launched a server on Discord so that they could privately discuss Apple tech issues with their colleagues. Named “AppleConnect”, the Discord server hosted 600 workers by Oct. 2021 who used anonymous identities to discuss frustrations with work. They then organized a union. The recent union win at Apple exemplifies a small portion of the success that workers have had in organizing unions by using digital tools like email and social media. Workers from Amazon to Starbucks and Mcdonald’s have leveraged digital organizing strategies to disseminate information about the benefits of forming a union and to coordinate in-person meetings, events, and actions. Union organizers use many tools in executing a digital organizing strategy. For example, Mapbox employees used a combination of private Slack for private communication, Facebook Groups for crowdsourcing information, and Signal for confidential discussions to organize the Mapbox Workers Union.
49% of unions use Facebook to organize. Unions have increasingly used digital platforms, like social media and email, to organize workers in all workplaces because they can address common problems organizers face. These tools enable workers to contact co-workers without having to physically find each other at a time convenient for heavy conversations. Workers seeking to unionize might not have contact information for all employees in their workplace and will have to rely on their workplace’s email server for that data. Permission for union organizers to access worksites inconveniently distant from public spaces has enabled isolated workers to learn about and exercise their workplace rights. Union organizers also use digital tools to covertly share knowledge and to coordinate valuable in-person conversations. The unionization campaign’s organizers might transition to another digital platform, like Facebook or WhatsApp, once workers are contacted initially through email.
Although labor organizers digitally organize to initially contact workers and to develop a reliable channel for communication, in-person organizing remains central to building the long-lasting relationships necessary to successfully unionize and then actually negotiate an initial collective-bargaining agreement. Still, it’s incredibly convenient for a worker to digitally initiate contact with a co-worker or organizer using the phone in their pocket. And that contact makes it easier for organizers to later reach workers in-person when meeting is contingent on a particular time and a physical place.
The National Labor Relations Act (“NLRA”), which established the framework that governs U.S. labor law today, and the independent federal agency tasked to interpret and enforce it, the National Labor Relations Board (“NLRB”), restricts the use of employer-provided emails for non-work uses. For some workers, email might be the only way to contact co-workers that they don’t physically work with. Meanwhile, employers can require employees to attend captive audience meetings, where employees watch anti-union videos and listen to management officials opine about the union’s potential impact to the business and its workplace culture.
Access to contact information or workplace digital platforms are especially important for organizing a union in our modern era where COVID-19 has required and subsequently normalized working remotely. The NLRB recently emphasized the need for greater worker email access post-COVID. Digital tools are also useful in organizing fissured workplaces. And digital tools might be the only way that organizers could realistically and effectively reach many smaller workplaces, which vote to unionize at higher rates than larger workplaces. In today’s workplace, co-workers may never meet face-to-face. And they might only communicate using the IT resources provided by their employer, like email or Microsoft Teams.
10.1% of all workers in the United States are unionized as of 2022. That percentage drops down to 6% when looking at just private-sector workers in 2022. However, that percentage substantially rises to 33.1% in 2022 when only considering only public-sector workers. This blogpost will focus on the law governing private-sector unionization because of the differences in case law generated by the various independent agencies authorized by state legislatures and the federal government to administer public-sector unionization. Many public-sector workers have organized unprecedented victories in recent years using digital organizing tactics, particularly through Facebook, like the 2018 West Virginia and Arizona teacher strikes that mobilized 70,000 teachers across the two states.
U.S. private-sector union density dropped by 0.1% between 2021 and 2022. And yet, the NLRB has seen a 53% increase between 2022 and 2021 in representation petitions filed to initiate a vote for a union in the petition-filers’ workplace. Workers cannot file this petition without collecting signatures from 30% of workers in the “potential bargaining-unit”. These technologies were unavailable to workers alive at the time that Congress passed the NLRA. The NLRA is primarily interpreted through rulemaking or adjudication, which can also overturn the Board’s own previous rulemaking and adjudication. Throughout its history the Board has reestablished as law overturned precedents, only to have them overturned again by a subsequent Board. And so, the NLRB has earned notoriety as one of the most politicized and weaponized federal agencies. This weaponization, the change in the NLRB’s position brought by a change in the governing Presidential administration’s ideology (somewhat correlating with their political party), engenders chaos in the law: organizers cannot rely on the law surrounding their use of workplace email servers and contact lists, the use of personal social media while on the employer’s Wi-Fi, or even the creation of a private channel on a workplace Slack. A lack of guidance further deters already hesitant workers from exercising their NLRA rights to organize.
Through the NLRB, Presidential administrations seek to effectuate what they deem the proper balance between management’s rights and workers’ rights. In other words, the NLRB could interpret the NLRA to empower the employer’s property right to exclude employees at the expense of employees’ NLRA right to engage in protected concerted activity for mutual aid or protection (also known as section 7 rights). If an employer excludes employees from accessing a list of emails for all employees for non-work reasons, then employees might not have another way to quickly communicate with a group of fellow employees. Employees can always create their own private channels for communication outside of the digital systems provided by their employer. But employees cannot invite co-workers to join these private channels without first contacting them. And employers might be the only ones that can grant access to the aggregated employee contact information necessary to make that initial contact.
The NLRB decisions that created and modified the standard governing employees’ use of an employer’s email server for activities protected by section 7 demonstrate this weaponization. The Bush-era NLRB ruled in 2007, and the D.C. Circuit U.S. Court of Appeals upheld in 2009, a limited exception to a total prohibition on employees’ use of their employer’s IT resources for non-business reasons. According to Register Guard, a 2007 NLRB decision, employees can use these resources to organize only if they have no other reasonable means of communicating with each other. And the employer cannot discriminatorily prohibit employees from using IT resources.
In 2014, the Obama-era Board changed the standard. The Board ruled in Purple Communications that employees could use their employer’s email system during non-working time for non-working reasons that are in furtherance of section 7 rights. Then, in 2019, the Trump-era Board overruled Purple Communications and returned to the Register Guard standard. That decision, Caesars Entertainment, reestablished Register Guard’s limited exception that allows employees to use their employer’s IT resources for non-business reasons only if they had no other reasonable means of communicating with each other. Caesars Entertainment remains the governing standard today. But in July 2022, a Regional Director of the NLRB recommended that the Board overrule Caesars Entertainment because it is an unsuitable standard for the modern workplace.” NLRB General Counsel Jennifer Abruzzo has signaled support for that position in her August 2021 memorandum presenting issue priorities.
This limited exception and its development also exemplifies the Board’s struggle to strike a balance between the employees’ section 7 NLRA rights to organize and the employer’s property rights, including their ability to use their property in ways that advances their business interests. In Purple Communications, and later Caesars Entertainment, the NLRB weighed an employer’s property rights against an employee’s section 7 rights. Employers are free to provide workers with access to the email system and the contact list for purposes unrelated to business. Employers can also refuse to provide employees such access, like through a rule in the employee handbook that prohibits use of the company’s email system for non-working activities. As a general principle of the NLRB’s access laws, permitted use is limited to non-working time.
Workers have more access to their employer’s IT-resources under the Purple Communications standard. Under that standard, employees’ section 7 rights prevail over their employer’s property rights more often: rather than having to prove the absence of reasonable means of communications (required under Caesars Entertainment), workers just have to show that they used their work email to exercise their section 7 rights on non-working time. In order to best effectuate the NLRA’s stated policy of fostering collective bargaining, the NLRB should adopt a standard that least chills workers from exercising their rights. The broadest standard would assure workers of their actions’ legality. And the employer’s enjoyment of their property does not suffer severely because IT-resources are digital property, not physical property, and thus scale different. Unlike a home, for example, that can only physically fit a certain amount of people, an employer’s email server, for example, scales differently and thus does not necessarily cost its host per user.
The Board in Purple Communications overruled Register Guard by distinguishing email servers from other physical workplace property. Its distinction focused on characteristics of email servers unique to digital property, centering the unique features of the digital forum (as opposed to employees gathering at a water cooler, for example) and the material differences between email servers and other workplace equipment (the network’s ability to “accommodate thousands of multiple, simultaneous, interactive exchanges,” as opposed to the “far more limited and finite resources” of physical property). The Purple Communications Board still turned to traditional property right principles to justify its conclusion, emphasizing “[equipment-use] capacity and insignificant marginal costs per message.” The Board in Caesars Entertainment argued that Purple Communications “impermissibly discounted employers’ property rights in their IT resources,” and labeled an email server as physical equipment rather than a “natural gathering place.”
If digital spaces and equipment are considered physical property, then restrictions on property interests like the right to exclude could implicate the Fifth Amendment Takings Clause. Although similar property rights could apply to both physical and digital property, the two are not the same. Justifications for property rights like the right to exclude are based in assumptions about property only applicable to physical property because it scales differently from digital property. The Board might not make this distinction, and just regard property as property. Such an approach risks destabilizing the law, especially since other agencies have acknowledged this distinction. In 2018, the Federal Communications Commission (FCC) described as “a single, integrated [information service] offering” a digital messaging service and the physical property that supports the service, specifically a data storage server and internet modem. In doing so, the FCC acknowledged that employees using any digital platforms in the workplace will likely have to access their employer’s internet server.
The FCC also concluded that the Communications Act of 1934 (passed one year before the NLRA) does not contemplate the unique way in which internet access is provided today. Instead of grappling with new and confusing digital technologies, courts might simply label digital property as “property” and assign to them the same rights associated with physical property. That “bundle of rights”, including the right to exclude, threatens to curtail digital organizing by workers. Advancing this theory is considerably easier when the law has not contemplated various forms of digital property in the past. Similarly, that lack of judicial understanding might lead the NLRB to overly limit the section 7 rights of workers based on conceptions of property unique to physical property.
Case law about the newly created Metaverse is sparce, and the frameworks of decades-old Acts that enable administrative agencies do not contemplate the unique ways in which these digital communications systems function. The Supreme Court has recognized the challenge of properly incorporating digital property in the law. In “one of the first cases the Court has taken to address the relationship between the First Amendment and the modern internet,” Packington v. North Carolina (2017), the Court noted that the “Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow.”
The law continues to consider not just emails, but also other forms of digital communications (which creates digital property) inherently supported by physical property as a unique form of property. Jurisprudence will continue to develop as cases involve other questions of digital property, such as employees’ use of work cellphones for personal purposes, posting digital content on personal channels that involves the employer’s property (i.e., a TikTok video filmed in the workplace’s breakroom), Telehealth, and the expanding Metaverse. Consider the common reality of connect to Wi-Fi provided by one’s employer during non-working time and in a non-working place, like while taking lunch in a breakroom. Will the NLRA allow employers to prohibit employees from accessing their personal social media while using an employer’s Wi-Fi, effectively banning all use of personal social media in the workplace? The pervasive impact of these decisions will forever change the relationship between an employee and their employer’s IT resources.
Abruzzo’s October 2022 memo on unlawful electronic surveillance and automated management practices demonstrates a way how agencies are reworking the statutes they are tasked with administering to accommodate our modern reality. In saying that employer surveillance must give way to employees’ rights to organize, Abruzzo has implicitly interpreted how the NLRA contemplates property rights in the digital context. But political parties will continue to fight over their desired balance between the rights vested in management and the rights vested in workers by the NLRA. Meanwhile, the people actually impacted by those decisions are without stable guidance as to the legality of their actions. Twelve years of jurisprudential development and three presidential administrations have yielded the same rule they started with. The NLRA and other federal statutes enabling the administrative state are not getting any younger. The law is not set up to seamlessly integrate modern technological developments. The NLRA does not anticipate fully fissured workplaces in which everyone in an office works remotely. But workers will only continue organizing digitally; it’s up to the government to keep up. Otherwise, the Act might remain stuck in the 20th century while the movement, workers, and businesses it seeks to regulate embrace the 21st.
When guidance for the legal use of another’s digital property finally does come, will it reflect the modern realities of digital technology? Or will lawmakers rely on traditional conceptions of physical property to prop it up, while its foundation crumbles?
Daniel Bromberg is a second-year J.D. candidate at Cornell Law School. He graduated with his B.S. in Industrial and Labor Relations in 2020 from the Cornell School of Industrial and Labor Relations (ILR School). In addition to being involved with the Journal of Law and Public Policy, Daniel is also a teaching assistant for Labor and Employment Law in the ILR School, the Student Representative on the Cornell Law Faculty Appointments Committee, and the Graduate and Professional Student-Elected Trustee representative on the Cornell University Board of Trustees.
Suggested Citation: Daniel Bromberg, LMAO: Labor Movement Already Online, while the National Labor Relations Act is stuck in analog, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (February 17, 2023), http://jlpp.org/blogzine/lmao-labor-movement-already-online-while-the-national-labor-relations-act-is-stuck-in-analog/.