The silicon bullet: Will the Internet kill the NLRA?

George Washington Law Review

Volumn 76, Issue 2, 2008, Pages 262-304

  Hirsch, Jeffrey M ^a  

^a UNIVERSITY OF TENNESSEE   (United States)

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EID: 41349117659     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (336)

1. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2263-64 (2001).
2. National Labor Relations Act, 29 U.S.C. §§ 151-169 (2000).
3. See Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1530-31 (2002).
4. These various types of electronic communications will, for the sake of simplicity, be referred to as the "Internet."
5. See Martin H. Malin & Henry H. Perritt, Jr., The National Labor Relations Act in Cyberspace: Union Organizing in Electronic Workplaces, 49 U. KAN. L. REV. 1, 3-4 (2000);
6. Elena N. Broder, Note, (Net)workers' Rights: The NLRA and Employee Electronic Communications, 105 YALE L.J. 1639, 1657 (1996);
7. Miles Macik, Note, "You've Got Mail." A Look at the Application of the Solicitation and Distribution Rules of the National Labor Relations Board to the Use of E-mail in Union Organization Drives, 78 U. DET. MERCY L. REV. 591, 604-05 (2001).
8. The Board, however, has recently announced its intent to examine several issues implicated by Internet use at the workplace. See infra notes 75-79 and accompanying text.
9. See, e.g., James J. Brudney, Isolated and Politicized: The NLRB's Uncertain Future, 26 COMP. LAB. L. & POL'Y J. 221, 259-60 (2005);
10. Michael H. LeRoy, Lockouts Involving Replacement Workers: An Empirical Public Policy Analysis and Proposal to Balance Economic Weapons Under the NLRA, 74 WASH. U. L.Q. 981, 1057 (1996).
11. See Tim Wu, The Copyright Paradox, 2005 SUP. CT. REV. 229, 232, 255 (suggesting that congressional action, rather than incremental judicial decisions, may be required to effectively address certain disruptive technologies).
12. In the traditional, NLRA-governed representational process, the Board holds a secret-ballot election once a union can show support from thirty percent of the employees. See 29 C.F.R. § 101.18(a)(4) (2007).
13. In contrast, unions engaged in "non-NLRA" organizing shun Board-run elections, relying instead on their ability to pressure employers for voluntarily recognition. See infra notes 31-32, 66-69 and accompanying text.
14. Although, in the interests of simplicity, I refer to the end of the NLRA, the result could, and probably would, be something less than the complete abolition of the Act. For example, the NLRA's regulation of union organizing is particularly vulnerable, see infra Part III, which could result in the elimination of NLRA governance of such activity; however, the Act's regulation of unfair labor practices enjoys more union support and could survive. Similarly, the "end" could occur through a dramatic reduction in the NLRB's jurisdiction or budget, rather than the agency's total elimination.
15. See Paul C. Weiler, A Principled Reshaping of Labor Law for the Twenty-First Century, 3 U. PA. J. LAB. & EMP. L. 177, 188 (2001)
16. (describing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937));
17. see also James Gray Pope, How American Workers Lost the Right to Strike, and Other Tales, 103 MICH. L. REV. 518, 522-23 (2004) (discussing impact of Jones & Laughlin on NLRA).
18. The magnitude of the Supreme Court's NLRA docket is well illustrated by the accomplishment of Norton Come, who as the head of the NLRB's Supreme Court Branch argued the second-most cases before the Court (fifty-six) of any government attorney - a particularly impressive feat for an attorney who did not work in the Solicitor General's office. See Longtime NLRB Official Dies, Daily Lab. Rep. (BNA) No. 53, at A-9 (Mar. 19, 2002).
19. The NLRA was last amended by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401-531 (2000).
20. Examples of the Board's anachronistic rules are discussed in more detail below. See infra Part III.
21. See, e.g., Jack M. Beermann, Interest Group Politics and Judicial Behavior: Macey's Public Choice, 67 NOTRE DAME L. REV. 183, 184 (1991);
22. see also MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 43-52 (1971) (discussing how smaller organizations are more effective at achieving their goals).
23. See OLSON, supra note 14, at 49-52;
24. Herbert Hovenkamp, The Limits of PreferenceBased Legal Policy, 89 NW. U. L. REV. 4, 60 (1994).
25. See OLSON, supra note 14, at 49-52.
26. See Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241, 250-51 (1992).
27. As groups having members with a disproportionate interest in an outcome may be able to overcome the political advantages typically possessed by regulated industries following the enactment of regulatory legislation, see RUSSELL HARDIN, COLLECTIVE ACTION 85-86 (1982), they may stymie further attempts by the industry to pass amendments detrimental to their interests.
28. See Estlund, supra note 3, at 1543;
29. cf. John T. Addison, Politico-Economic Causes of Labor Regulation in the United States: Rent Seeking, Alliances, Raising Rivals' Costs (Even Lowering One's Own?), and Interjurisdictional Competition 20 (Inst, for the Study of Labor, Discussion Paper No. 2381, 2006) (discussing role of compromises between employers, workers, and unions in shaping state workers' compensation statutes).
30. For example, in the 1970s, employers were able to block prounion reforms by using the Senate's supermajority requirements. See Estlund, supra note 3, at 1540-41.
31. Another theory that may explain the NLRA's stagnation is the "tragedy of the anticommons," which Michael A. Heller has described as a situation where a "resource is prone to underuse" because "there are too many owners holding rights of exclusion." Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 624 (1998). Similarly, the ability of both unions and employers to prevent amendments to the NLRA may be an example of exclusory rights that preclude socially beneficial change. Thanks are owed to Benjamin Barton for this insight.
32. Union membership (or "density") as a percentage of all private wage and salaried workers has fallen from 21.7% in 1977 to only 7.4% in 2006. See BARRY T. HIRSCH & DAVID A. MACPHERSON, UNION MEMBERSHIP, COVERAGE, DENSITY, AND EMPLOYMENT AMONG PRIVATE SECTOR WORKERS, 1973-2006 (2007), http://unionstats.gsu.edu/ Private%20Sector%20 workers.htm;
33. see also Barry T. Hirsch & David A. Macpherson, Union Membership and Coverage Database from the Current Population Survey: Note, 56 INDUS. & LAB. REL. REV. 349-54 (2003) (describing method used to compile union membership data);
34. Addison, supra note 19, at 27 (noting that although "high union density strengthens the political influence of unions on legislation . . . further reductions in unionism are likely to yield increased reliance on government to define rights at the workplace" through other non-NLRA regulations).
35. See OLSON, supra note 14, at 45;
36. see also William Canak & Berkeley Miller, Gumbo Politics: Unions, Business, and Louisiana Right-to-Work Legislation, 43 INDUS. & LAB. REL. REV. 258, 269 (1990) (arguing that some Louisiana businesses did not publicly support antiunion right-to-work legislation when they feared that unions could effectively retaliate).
37. For example, a Republican-led Congress passed the employer-backed Teamwork for Employees and Managers Act of 1995 ("TEAM Act"), H.R. 743, 104th Cong. (1995), which would have lowered restrictions on employer-sponsored workplace participation groups. Congress, however, did not override the veto of President Clinton, a Democrat. See 142 Cong. Rec. H8816 (1996) (announcing veto of President Clinton). Moreover, despite several years of Republican control of the White House and both branches of Congress in the early 2000s, there were no serious efforts to revive the TEAM Act or other employer-backed labor legislation.
38. See infra notes 31-32 and accompanying text.
39. Cf. Alan B. Krueger, The Evolution of Unjust-Dismissal Legislation in the United States, 44 INDUS. & LAB. REL. REV. 644, 658 (1991) (arguing that state unjust dismissal regimes may be more likely to be proposed, and therefore enacted, when employers support legislation because they dislike existing common law rules);
40. Alan B. Krueger, Reply, 45 INDUS. & LAB. REL. REV. 796, 796-98 (1992) (arguing that lack of employer opposition to unjust dismissal legislation was a significant factor in its passing in certain states).
41. See supra notes 22-23 and accompanying text.
42. See infra notes 36-45 and accompanying text;
43. cf. Estlund, supra note 3, at 1542-44 (describing apparent symmetry between unions and employers in the legislative arena, but arguing that employers have more economic and political power, are able to block unions' attempts at reform, and are content to bide their time as unions become weaker).
44. See, e.g., Raymond N. Hulser, Comment, The Rejection of Collective Bargaining Agreements in Chapter 11 Reorganizations: The Need for Informed Judicial Decisions, 134 U. PA. L. REV. 1235, 1244-45 (1986).
45. For example, in IBM Corp., 341 N.L.R.B. 1288, 1288 (2004),
46. the Board concluded that nonunionized employees do not have the right to have a coworker present during investigatory interviews, which reversed its prior ruling in Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. 676, 676 (2000),
47. enforced in relevant part, 268 F.3d 1095 (D.C. Cir. 2001),
48. which in turn had reversed the Board's decision in E. I. DuPont & Co., 289 N.L.R.B. 627, 628 (1988).
49. See infra Part III.
50. See Julius Getman, The National Labor Relations Act: What Went Wrong; Can We Fix It?, 45 B.C. L. REV. 125, 136 (2003) (citing unions' push for voluntary recognition by employers);
51. cf. James J. Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 IOWA L. REV. 819, 827 (2005) (describing recent drop in NLRA elections despite increase in union organizing activity).
52. The NLRB has reported that the number of initial elections it conducted declined from 2715 to 2296, a significant 15.4%, in fiscal year 2006. NLRB, SUMMARY OF OPERATIONS: FISCAL YEAR 2006, at 7 (2007), available at http://www.nlrb. gov/shared_files/ Press%20Releases/2006/R-2611.pdf.
53. Although the causes of this decline are unclear, union membership rates held relatively steady during this period. See BARRY T. HIRSCH & DAVID A. MACPHERSON, UNION MEMBERSHIP, COVERAGE, DENSITY, AND EMPLOYMENT AMONG ALL WAGE AND SALARY WORKERS, 1973-2006 (2007), http://unionstats.gsu.edu/All% 20Wage%20and%20Salary%20Workers.htm. Thus, unions' willingness to engage in non-NLRA organizing was likely an important factor.
54. Michelle Amber & Fawn Johnson, Organizing Gets Renewed Emphasis, but Success of Efforts Since Split Unclear, Daily Lab. Rep. (BNA) No. 171, at C-I (Sept. 5, 2006);
55. Michelle Amber, SEIU, IBT Disaffiliate from AFL-CIO, Announce Plan to Set Up New Federation, Daily Lab. Rep. (BNA) No. 142, at AA-1 (July 26, 2005).
56. Indeed, in 2005, less than ten percent of UNITE HERE'S (a member of Change-To-Win) new organizing took place through the NLRA representation process. Rick Valliere, Unions Turning Away from NLRB Elections as Primary Way of Organizing, Raynor Says, Daily Lab. Rep. (BNA) No. 8, at C-3 (Jan. 12, 2006).
57. See supra note 21 and accompanying text.
58. Cf. Eloise Pasachoff, Note, "Head Start Works Because We Do": Head Start Programs, Community Action Agencies, and the Struggle over Unionization, 38 HARV. C.R.-C.L. L. REV. 247, 261 (2003) (noting that employees often favor NLRB jurisdiction because they perceive the NLRA as more employee-friendly than state law);
59. supra note 46 and accompanying text (describing negative consequences for employees that would result from elimination of the NLRA). But cf. infra notes 47-48 and accompanying text (describing portions of the NLRA benefiting employers).
60. See Elizabeth Papacek, Comment, Sexual Harassment and the Struggle for Equal Treatment Under Title VII: Front Pay as an Appropriate Remedy, 24 WM. MITCHELL L. REV. 743, 761 (1988).
61. William B. Gould, NLRB Chairman, Observations on the Relationship Between Law and Politics as Chairman of the National Labor Relations Board, 1994-1998 and an Admonition About the Epigones Who Would Undo Our Initiatives, Speech to the California Labor Federation (July 21, 1998), in Daily Lab. Rep. (BNA) No. 141, at E-11 (July 23, 1998) (describing problems at the NLRB caused by hostile political environment).
62. See, e.g., id. (describing action taken by prounion Congressmen to facilitate NLRB enforcement proceedings).
63. See supra note 11 and accompanying text.
64. Cf. supra notes 14-17 and accompanying text (describing public choice theory).
65. See Am. Fed'n of Labor and Cong, of Indus. Orgs., Complaint to the ILO Committee on Freedom of Association by the American Federation of Labor and Congress of Industrial Organizations Concerning the United States Government's Violations of Freedom of Association and Collective Bargaining by Failing to Enforce the National Labor Relations Act 10-41 (ILO Case No. 2608 filed Oct. 25, 2007), available at http://op.bna.com/dlrcases.nsf/id/mamr78btn4/ $File/ILOcomplaint.pdf (complaining about a litany of decisions by the second Bush administration's NLRB, including cases expanding the definition of "supervisor," increasing protection of employer property rights, limiting employee speech rights, and refusing to issue bargaining orders).
66. See infra Part III.
67. See Department of Education Elimination Act of 1995, H.R. 1318, 104th Cong. (1995). Notably, the ultimate survival of the DOE was likely the result of the type of group dynamics that public choice theory espouses. Because opponents of the Department were motivated primarily by general concerns for federalism, there were few direct benefits to that group. Supporters of the Department, however, faced direct costs-for example, loss of federal funding-if the attempt to abolish it succeeded.
68. See Airline Deregulation Act of 1978, sec. 40(a), § 1601, Pub. L. No. 95-504, 92 Stat. 1705, 1744-47.
69. See MARTHA DERTHICK & PAUL J. QUIRK, THE POLITICS OF DEREGULATION 162-63 (1985).
70. Cf. id. at 163-64 (describing collapse of the airline industry's opposition to deregulation due to the industry's fractionalized interests and inability to pursue a coordinated strategy).
71. See 29 U.S.C. § 158(a)(1) (2000) (provision of the NLRA preventing employers from "interfer[ing] with, restraining], or coerc[ing] employees" in the exercise of their right to collective action under § 157).
72. See, e.g., id. § 158(b)(4) (prohibiting certain union secondary action intended to threaten, coerce, or restrain an employer). Even if employers undervalue the potential costs of the NLRA's elimination, they may still be correct that the benefits of elimination outweigh the costs.
73. Employers, for example, may sue in federal court for damages caused by union secondary boycotts that violate the NLRA; neither unions nor the Board may seek damages for employer unfair labor practices. Compare id. § 187(b) (providing suit for damages caused by union violation of § 158(b)(4)),
74. with Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 235-36 (1938) (holding that the NLRA does not give the Board authority to impose compensatory or punitive damages on an employer). Moreover, the Board's General Counsel may seek an injunction in federal court against employer unfair labor practices, but must seek an injunction against unlawful union secondary boycotts.
75. Compare 29 U.S.C. § 160(j) (Board "shall have power" to file a claim against employer unfair labor practices), with id. § 160(l) (Board "shall" file a claim against union secondary boycotts).
76. See id. § 151 (describing NLRA policies).
77. See infra Part II.
78. See infra Part III.
79. See infra Part III.
80. See infra Part III.
81. Cf. Benjamin H. Barton, Tort Reform, Innovation, and Playground Design, 58 FLA. L. REV. 265, 270 (2006) (arguing that increased tort liability prompted the design of not only safer, but higher quality, playgrounds).
82. See supra note 40.
83. See Jeffrey M. Hirsch & Barry T. Hirsch, The Rise and Fall of Private Sector Unionism: What Next for the NLRA?, 34 FLA. ST. U. L. REV. (forthcoming 2007) (manuscript at 33-36, available at http://ssrn.com/abstract_id=933493).
84. See Michael H. Gottesman, Rethinking Labor Law Preemption: State Laws Facilitating Unionization, 7 YALE J. ON REG. 355, 374-94 (1990) (discussing the NLRA's strong preemptive jurisdiction).
85. See infra notes 75-79 and accompanying text.
86. According to Miniwatts Marketing Group, 70.4% of individuals in the United States used the Internet as of August 2007. See North America: Internet Usage in Bermuda, Canada, Greenland, Saint Pierre et Miquelon, and the United States of America, http://www.internet worldstats.com/america.htm (last visited Dec. 15, 2007).
87. This statistic is consistent with 2004 data showing that sixty-three percent of adults in the United States were regular Internet users. Richard B. Freeman, From the Webbs to the Web: The Contribution of the Internet to Reviving Union Fortunes 0 n.l (Nat'l Bureau of Econ. Research, Working Paper No. 11298, 2005)
88. (citing Has Internet Growth Reached Its Peak?, THE SOURCE (Mediamark Research, Inc., New York, N.Y.), June 2004, http://www.mediamark.com/mri/TheSource/sorc2004_06.htm (defining "user" as someone who used the Internet during the past thirty days)).
89. BLS Finds 55 Percent of Employees Used Computers at Work in October 2003, Daily Lab. Rep. (BNA) No. 148, at D-24 (Aug. 3, 2005).
90. Another survey found that thirty-five percent of employees used instant messaging at work. Survey Finds More Employer Policies Focus on Employees' E-mail than IM, Blogs, Daily Lab. Rep. (BNA) No. 137, at A-8 (July 18, 2006).
91. Id. (noting also that only thirty-one percent of those employers regulate instant messaging and nine percent regulate blogging).
92. See Freeman, supra note 59, at 2-5, 10-11 (discussing unions' use of the Internet and noting the high quality of major American unions' websites).
93. Examples of difficult-to-reach employees include salespersons, telecommuters, and other employees who do not spend a significant amount of time at the same worksite. The Board had expressed its intent to consider in Guard Publ'g Co. (Register-Guard), 351 N.L.R.B. No. 70 (Dec. 16, 2007),
94. whether the location of an employee's workplace should affect the NLRA's regulation of Internet communications, but it failed to do so. See infra notes 74, 79.
95. See supra note 31 and accompanying text.
96. Cf. Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1240-43 (1966) (discussing the importance of effective union communications with employees during a Board-run election).
97. See, e.g., U-Haul Co. of Cal., 347 N.L.R.B. No. 34, slip op. at 11 (June 8, 2006) (organizing drive started by employee distributing information from union website to other employees);
98. Frontier Tel. of Rochester, Inc., 344 N.L.R.B. No. 153, slip op. at 6, 8 (July 29, 2005) (finding unlawful termination of employee who created web page to encourage employee discussions during union organizing campaign), enforced, 181 F. App'x 85 (2d Cir. 2006).
99. See Tom Gilroy, Union to Conduct 'Virtual Leafleting' Campaign as Part of Airport Organizing Effort, Daily Lab. Rep. (BNA) No. 12, at A-5 (Jan. 19, 2000).
100. Id.
101. Id. Interestingly, Yahoo! cancelled the ads one month into their planned three-month run, apparently because the ads mentioned the name "Yahoo!," which violated the advertising agreement.
102. See Tom Gilroy, Yahoo! Pulls Union Internet 'Leaflet' on Organizing Drive at Argenbright Security, Daily Lab. Rep. (BNA) No. 36, at A-3 (Feb. 23, 2000).
103. See Baggage Handlers at Los Angeles Airport Vote for Representation by SEIU Local 1877, Daily Lab. Rep. (BNA) No. 129, at A-7 (July 5, 2000) (reporting a vote of 285 to 50 in favor of union representation).
104. Michelle Amber, Union Loses First Attempts to Organize Pizza Drivers with Votes in Ohio, Nebraska, Daily Lab. Rep. (BNA) No. 227, at A-7 (Nov. 26, 2004).
105. The APDD disbanded and several of its officers moved to the American Union of Pizza Delivery Drivers, which recently achieved its first successful organizing drive and is receiving increased interest from other drivers. See Michelle Amber, Union That Organized Florida Pizza Drivers Says It Gets Inquiries from Other Drivers, Daily Lab. Rep. (BNA) No. 186, at A-9 (Sept. 26, 2006).
106. Exceptions include the National Mediation Board's governance of representation issues under the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-163, 181-188 (2000). See id. §§ 154-155.
107. See infra Part III.
108. Guard Publ'g Co. (Register-Guard), 351 N.L.R.B. No. 70 (Dec. 16, 2007).
109. See Press Release, Nat'l Labor Relations Bd., NLRB to Hold Oral Argument on Employee Use of Employer's E-mail System (Jan. 10, 2007), available at http://www.nlrb.gov/shared _files/Press%20Releases/2006/R- 2613.pdf. The full, five-member Board considered the case.
110. See id.
111. See Register-Guard, slip op. app. at 27 (McCarrick, A.L.J.).
112. Incidentally, the ALJ found that the employer discriminatorily enforced its Internet use rule and held in favor of the employee. See id. at 28.
113. The case also involves several other issues that are not related to Internet communications. See id. at 24.
114. See Joan Flynn, The Costs and Benefits of "Hiding the Ball": NLRB Policymaking and the Failure of Judicial Review, 75 B.U. L. REV. 387, 391-92 (1995).
115. See Notice of Oral Argument and Invitation to File Briefs at 1-2, Register-Guard, Nos. 36-CA-8743-1, -8849-1, -8789-1, -8842-1 (Nat'l Labor Relations Bd. Jan. 10, 2007), available at http://www.nlrb.gov/ shared_files/Press%20Releases/2006/R-2613.pdf.
116. The Board announced that it was "especially interested" in addressing the following questions in Register-Guard: 1. Do employees have a right to use their employer's e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
117. Should the Board apply traditional rules regarding solicitation and/or distribution to employees' use of their employer's e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
118. If employees have a right to use their employer's e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer's e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
119. In answering the foregoing questions, of what relevance is the location of the employee's workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
120. Is employees' use of their employer's e-mail system a mandatory subject of bargaining? Assuming that employees have a section 7 right to use their employer's email system, to what extent is that right waivable by their bargaining representative?
121. How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
122. Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?
123. Id.
124. Register-Guard, slip op. at 5-7.
125. Id. at 7.
126. See infra notes 117-20 and accompanying text.
127. The Board addressed at most some of the issues implicated by the first three questions it had earlier posed. See supra note 79.
128. Indeed, the Board indicated in its Notice of Oral Argument and Invitation to File Briefs that it would not reconsider its traditional rules beyond their application to Internet communications. See supra note 78 (asking whether it should "apply [its] traditional rules regarding solicitation and/or distribution" to Internet communications or whether it should create a new standard for Internet communications).
129. See supra Part I.A;
130. cf. Addison, supra note 19, at 23 (stating that unions have had a direct impact on the effectiveness of living wage ordinances, which case studies have shown to be "structured to support union organizing").
131. Addison also cites the repeal of prevailing wage laws in several states as illustrative of unions' rent-seeking political behavior-that is, the unsurprising notion that unions' support for prevailing wage laws is tied to the level of wage benefits that such laws provide union workers. See id. at 25-26.
132. See supra notes 31-35 and accompanying text.
133. See supra Part II.
134. See supra notes 62-71 and accompanying text.
135. See infra Parts III.A-B.
136. In the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C), Congress enacted the Stored Communications Act ("SCA"), 18 U.S.C §§ 2701-2711 (2000 & Supp. IV 2004), which prohibits unauthorized access to communications, including e-mails, stored within computer systems.
137. See id. § 2701(a)(1) (making it a crime to "intentionally access[ ] without authorization a facility through which an electronic communication service is provided . . . and thereby obtain [ ] . . . access to a wire or electronic communication while it is in electronic storage in such system");
138. id. § 2701(c)(2) (exempting access authorized by user of service with respect to that user's communication);
139. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 879-80 (9th Cir. 2002) (holding that employer's access to employee's restricted-access website may violate SCA).
140. The SCA also contains an exception in certain instances for employer monitoring of workplace communications. See 18 U.S.C. § 2701(c)(1) (exception for monitoring of one's own service).
141. See Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244, 249 (Ct. App. 2001),
142. rev'd, 71 P.3d 296 (Cal. 2003);
143. infra notes 187-89 and accompanying text.
144. See infra notes 174-77 and accompanying text.
145. See Timekeeping Sys., Inc., 323 N.L.R.B. 244, 248-50 (1997) (concluding that employee's e-mail criticism of vacation benefits was protected);
146. E. I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 897 (1993) (finding that employer unlawfully barred union literature from company e-mail system).
147. See Broder, supra note 5, at 1657;
148. supra note 60.
149. See, e.g., Timekeeping Sys., 323 N.L.R.B. at 247-50 (applying pre-Internet precedent to Internet communications).
150. Section 7 of the NLRA protects employees' right to "self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (2000).
151. Those rights are enforced through section 8(a)(1), which provides that "[i]t shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise" of their section 7 rights. Id. § 158(a)(1).
152. Evidence of antiunion intent is unnecessary to show a violation. See Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1006 (9th Cir. 1995).
153. This issue is particularly significant for the growing number of telecommuters and other employees who are able to work at remote locations-an increase due in large part to the Internet. Fifteen Percent of U.S. Workforce Teleworks, but Number Likely to Grow, EPF Report Says, Daily Lab. Rep. (BNA) No. 51, at A-6 (Mar. 17, 2004).
154. The Board's current test for classifying workers as employees or independent contractors relies on factors found in the Restatement of Agency such as the hiring party's right to control the work, the location of the work, and the hiring party's discretion over when and how to work. See St. Joseph News-Press, 345 N.L.R.B. No. 31, at 4-5 (2005) (discussing the Board's continued adherence to multi-factor test set forth in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750-52 (1989)).
155. This issue is important because if the Board fails to recognize the technological advances that allow employers to control the work of telecommuters, those workers are likely to be classified as independent contractors and excluded from the NLRA. See 29 U.S.C. § 152(3) (exempting independent contractors from NLRA definition of employee).
156. An NLRA "bargaining unit" establishes which employees can be represented together by a union, see 29 U.S.C. § 159(a)-(b),
157. and is based on several factors affected by the Internet, including the employees' similarity in skills, interests, duties and working conditions; the employees' integration and contact within a plant; and the employer's organizational and supervisory structure. See Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1157 (6th Cir. 1996).
158. Under this analysis, the Board typically follows its "single-plant doctrine," which presumes that a bargaining unit consisting of employees from a single location is appropriate. See, e.g., Prince Telecom, 347 N.L.R.B. No. 73, slip op. at 4 (July 31, 2006) (describing, and finding evidence to rebut, single-plant presumption). The Board should modify its unit determination analysis by taking into account the common interests that telecommuters may share with other employees despite their physical separation. This change would protect telecommuters' rights to collective representation by ensuring that they are not unjustifiably excluded from a unit.
159. See infra notes 104-05 and accompanying text.
160. An employer's ability to monitor employees' use of its computer system, for example, directly implicates the NLRA's ban on surveillance. To reduce the chilling effect on union activity caused by employer monitoring, the Board has found that an employer, absent sufficient justification, violates the NLRA by observing employees engaged in protected activity or giving employees an impression that it is engaging in such observations. See Nat'l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1271 (D.C. Cir. 1998) (noting that photographing or videotaping protected activity has tendency to intimidate employees);
161. cf. Frontier Tel. of Rochester, Inc., 344 N.L.R.B. No. 153, slip op. at 6-7 (July 29, 2005) (describing activities failing to give rise to an impression of surveillance violation).
162. Yet restricting an employer's ability to monitor its own computer system may encroach on the employer's property interests. This surveillance issue, however, may present the rare instance in which the Board's current rules could easily accommodate Internet communications. See Hirsch & Hirsch, supra note 56, at 51-53.
163. In contrast, the Board's analysis of employer attempts to bar organizing activity is far more troublesome, and best illustrates why unions may abandon the NLRA representation process. See infra Parts III.A-C.
164. See infra notes 123, 136-40, 174-83 and accompanying text.
165. Alan Story, Employer Speech, Union Representation Elections, and the First Amendment, 16 BERKELEY J. EMP. & LAB. L. 356, 383 (1995);
166. cf. NLRB v. Magnavox Co. of Tenn., 415 U.S. 322, 325 (1974) ("The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees.").
167. See supra notes 62-71 and accompanying text.
168. See supra note 62 and accompanying text.
169. See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-98 (1945) (noting that solicitation restrictions require "an adjustment between the undisputed right of self-organization assured to employees under the [NLRA] and the equally undisputed right of employers to maintain discipline in their establishments");
170. Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 617, 620 (1962) (citing Republic Aviation, 51 N.L.R.B. 1186, 1195 (1943));
171. cf. Textile Workers Union of Am. v. Darlington Mfg. Co., 380 U.S. 263, 269 (1965) ("[I]t is only when the interference with [section] 7 rights outweighs the business justification for the employer's action that [section] 8(a)(1) is violated.").
172. See, e.g., Jeffrey M. Hirsch, Taking State Property Rights Out of Federal Labor Law, 47 B.C. L. REV. 891, 909-15 (2006) (discussing the Board's difficulty in applying state property law);
173. Cynthia L. Estlund, Labor, Property, and Sovereignty After Lechmere, 46 STAN. L. REV. 305, 333 (1994) (emphasizing the employer's "near-dictatorial power over the workplace").
174. See supra notes 75-79 and accompanying text.
175. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
176. See LeTourneau Co., 54 N.L.R.B. 1253, 1260 (1944),
177. aff'd sub nom. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945);
178. Peyton Packing Co., 49 N.L.R.B. 828, 843-44 (1943);
179. see also TeleTech Holdings, Inc., 333 N.L.R.B. 402, 403 (2001) ("A no-distribution rule which is not restricted to working time and to work areas is overly broad and presumptively unlawful.");
180. supra note 95 (describing "protected" employee activities under section 7 of the NLRA). Exceptions have always been made for production or disciplinary reasons.
181. See, e.g., NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 110 (1956)
182. (citing LeTourneau, 54 N.L.R.B. at 1262).
183. The balance shifts dramatically in employers' favor when nonemployee communications are at issue. See infra notes 174-77 and accompanying text.
184. See, e.g., Media Gen. Operations, Inc., 346 N.L.R.B. No. 11, at 3 (Dec. 16, 2005) (finding that employer unlawfully singled out union e-mails);
185. E. I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 893 n.4, 919 (1993) (same).
186. The discussion here will refer to union-related communications because these issues most frequently occur in the context of union organizing. The analysis, however, is equally applicable to nonunion, protected communications. See supra note 95 (describing employee section 7 rights generally).
187. One example is a total ban on all nonwork-related e-mail. See, e.g., General Counsel Advice Memorandum, Union Carbide Corp., Case No. 16-CA-20555, 2000 WL 33252021, at *1 (Nat'l Labor Relations Bd. Nov. 7, 2000), available at http://www.nlrb.gov/research/memos/advice_memos.
188. Employers have also implemented less restrictive, facially neutral restrictions. See, e.g., General Counsel Advice Memorandum, TXU Elec, Case Nos. 16-CA-20576, -20568-2, 2001 WL 1792852, at *2 (Nat'l Labor Relations Bd. Feb. 7, 2001), available at http://www.nlrb.gov/ research/memos/advice_memos
189. [hereinafter TXU Elec. Advice Memorandum] (discussing employer rule that e-mail may be sent to a maximum of five employees, e-mail must be limited in size, and no employer resources can be used to create web pages). The discrimination exception could still be relevant against facially neutral restrictions, however, if the employer adopted the restrictions in an attempt to thwart an organizing drive. See Youville Health Care Qr., Inc., 326 N.L.R.B. 495, 495 (1998) (finding a presumptively valid no-solicitation rule to have violated section 8(a)(1) because it was created in response to employees' protected activity).
190. In Register-Guard,
191. the Board set forth a new definition of discrimination that makes an employer's prohibition of union-related Internet communications unlawful only if the employer treated them differently than other union-related messages; under the new rule, an employer can prohibit all union-related communications, while permitting all other types of communications. See Guard Publ'g Co. (Register-Guard), 351 N.L.R.B. No. 70, slip op. at 9 (Dec. 16, 2007).
192. A later Board could, and very well may, return to its previous, and much broader, definition of discrimination. See E. I. du Pont, 311 N.L.R.B. at 897 (finding that employer unlawfully barred union literature from company e-mail system, while allowing other nonwork-related e-mails);
193. General Counsel Advice Memorandum, Pratt & Whitney, Case Nos. 12-CA-18446, -18722, -18745, -18863, 1998 WL 1112978, at *2 (Nat'l Labor Relations Bd. Feb. 23, 1998), available at http://www.nlrb.gov/research/ memos/advice_memos
194. [hereinafter Pratt & Whitney Advice Memorandum] (suggesting that broad nonwork-related e-mail ban was unlawfully enforced against union material because ban was not strictly enforced, employees used e-mail extensively, and union organizing campaign had begun).
195. See infra note 196 and accompanying text.
196. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491 (1978) ("[T]he right of employees to self-organize and bargain collectively . . . necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.").
197. Adtranz, ABB Daimler-Benz Transp., N.A., Inc., 331 N.L.R.B. 291 (2000), vacated in part by 253 F.3d 19 (D.C. Cir. 2001).
198. See id. at 293.
199. Because the ALJ's treatment of the e-mail rule was not challenged, the Board did not address this issue. Id. at 291 n.1.
200. See Register-Guard, slip op. at 5.
201. See infra note 189 and accompanying text.
202. See supra notes 107-09 and accompanying text.
203. See Register-Guard, slip op. at 16, 17-18 (Members Liebman and Walsh, dissenting).
204. See Macik, supra note 5, at 604-05, 609-10.
205. "Nonwork time" refers to time that an employee is not actually working even if she is physically on the jobsite, such as break or lunch time. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945) (quotation omitted).
206. See supra note 110 and accompanying text.
207. See Republic Aviation, 324 U.S. at 803 n.10 (justifying rule that employers can restrict union solicitations during work time, but not during nonwork time, because '"[w]orking time is for work___It is no less true that time outside working hours... is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property'"
208. (quoting Peyton Packing Co., 49 N.L.R.B. 828, 843 (1943))).
209. Cf. Broder, supra note 5, at 1656, 1658 (discussing difficulty in enforcing e-mail restrictions at work).
210. See Republic Aviation, 324 U.S. at 794-95, 803 n.10.
211. Cf, e.g., Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 620 (1962) (comparing a manufacturing plant's "parking lots, . . . entrances or exits, [and] other nonworking areas" with "the machines or work stations where the employer's interest in cleanliness, order, and discipline is undeniably greater than it is in nonworking areas").
212. See supra notes 60-61 and accompanying text;
213. see also, e.g., Pratt & Whitney Advice Memorandum, supra note 112, at *4 (describing a computer-dependent workplace environment).
214. See, e.g., id. ("Employer-provided computer networks are work areas since it is on these networks that these employees are productive.").
215. See id. at *6 ("While working time has always been somewhat difficult to exactly define, the lines between working time and nonworking time may be even more blurred and doubtful with regard to professional and quasi-professional employees whose work involves extensive use of computers.").
216. Cf. Beth Israel Hosp. v. NLRB, 437 U.S. 483, 510-11 (1978) (Powell, J., concurring) ("The rule of Republic Aviation was adopted in the context of labor relations in industrial and manufacturing plants.... The rationality found to exist in Republic Aviation, and therefore the validity of the presumption, cannot be transferred automatically to other workplaces [because] [conditions in industrial or manufacturing plants differ substantially from conditions in [other] establishments. . . .").
217. See, e.g., Pratt & Whitney Advice Memorandum, supra note 112, at *4 (noting that at one company, "[engineering department employees have stated that they communicate primarily by [e]-mail");
218. infra note 154 and accompanying text (discussing NLRB Division of Advice description of some computer networks as "virtual work areas");
219. see also Survey Finds More Employer Policies Focus on Employees' E-mail than IM, Blogs, supra note 60, at A-8 (discussing methods of employee Internet interaction at the workplace).
220. See TXU Elec. Advice Memorandum, supra note 111, at *4 (recommending that employers be permitted to implement e-mail restrictions if they show a "likelihood of significant interference with an employer's use of its computer resources").
221. But see General Counsel Advice Memorandum, Computer Assoes. Int'l, Case No. 1-CA-38933, 2001 WL 34399637, at *4 (Nat'l Labor Relations Bd. Oct. 26, 2001), available at http://www.nlrb.gov/research/memos/ advice_memos
222. [hereinafter Computer Assoes. Int'l Advice Memorandum] (stating that ban on personal e-mails during "working hours"-which includes time at work, but while on break - was unlawful, and suggesting that a ban during only work time should be lawful);
223. Broder, supra note 5, at 1657-58 (arguing that the traditional Republic Aviation analysis fails to adequately protect employer interests in limiting e-mail use).
224. See infra notes 145-51 and accompanying text.
225. Cf. supra notes 28-41 and accompanying text (discussing the necessity of union support for the NLRA for its continued survival).
226. Although the Board indicated that it may address this question in Register-Guard, see supra note 79, it expressly refused to do so, see Guard Publ'g Co. (Register-Guard), 351 N.L.R.B. No. 70, slip op. at 6 n.9 (Dec. 16, 2007).
227. See Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 616 (1962) (asserting the legal distinction between oral solicitation and distribution of literature).
228. See id. at 617 & n.4.
229. See id. at 620 (noting that an employer may have to allow distributions in parking lots and plant entrances or exits).
230. Id. at 619.
231. See id. at 620.
232. See id. at 628-29 (Fanning & Brown, Members, dissenting in part) (arguing that distributions should be treated the same as solicitations).
233. The potential for litter would not be such an abuse. An employer could implement a rule that employees who distribute written material must pick up any material left behind, but should not be able to ban all written material simply because litter might be a problem.
234. See Christine Neylon O'Brien, The Impact of Employer E-Mail Policies on Employee Rights to Engage in Concerted Activities Protected by the National Labor Relations Act, 106 DICK. L. REV. 573, 583-84 (2002) (discussing examples).
235. See Frederick D. Rapone, Jr., Comment, This Is Not Your Grandfather's Labor Union - Or Is It? Exercising Section 7 Rights in the Cyberspace Age, 39 DUO. L. REV. 657, 670-72 (2001);
236. Macik, supra note 5, at 602-04.
237. See, e.g., supra note 139 and accompanying text.
238. See infra notes 158-60 and accompanying text.
239. See Rapone, supra note 144, at 677-78;
240. Macik, supra note 5, at 603.
241. See infra notes 167-71 and accompanying text.
242. For example, in Stoddard-Quirk, the Board distinguished authorization cards from other handouts, like prounion literature, suggesting that they should be classified as solicitations because, unlike typical written distributions, the cards are returned and do not remain at the worksite. See Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 620 & n.6 (1962);
243. Macik, supra note 5, at 604;
244. see also infra note 210 (defining authorization cards).
245. It is difficult to imagine that nonabusive Internet communications would be any more disruptive than the distribution and collection of authorization cards. Moreover, even the minor interruptions associated with additional e-mail are unlikely to reduce productivity for individual workers or the firm as a whole. See Broder, supra note 5, at 1667.
246. See Intel Corp. v. Hamidi, 71 P.3d 296, 308 (Cal. 2003) (stating that unwanted e-mail did not constitute a trespass because, in part, the sender "did nothing but use the e-mail system for its intended purpose-to communicate with employees. The system worked as designed, delivering the messages without any physical or functional harm or disruption. These occasional transmissions cannot reasonably be viewed as impairing the quality or value of [the employer's] computer system.").
247. See Broder, supra note 5, at 1660-61 (noting that e-mail has no physical presence, is not overheard by customers, and can be regulated to minimize disruption of work);
248. Macik, supra note 5, at 602.
249. The Division's role is to recommend whether the NLRB General Counsel should file unfair labor practice charges in a particular case. This advice generally involves the application of established Board law to novel factual situations; the Division of Advice does not typically recommend that the General Counsel advocate for change in Board law, although it would be justified in doing so here.
250. See supra note 104 and accompanying text.
251. See Computer Assocs. Int'l Advice Memorandum, supra note 132, at *3-4;
252. Pratt & Whitney Advice Memorandum, supra note 112, at *4-6.
253. General Counsel Advice Memorandum, Bureau of Nat'l Affairs, Case No. 5-CA-28860, 2000 WL 33941886, at *3 (Nat'l Labor Relations Bd. Oct. 3, 2000), available at http://www.nlrb.gov/research/memos/advice_memos.
254. Id.
255. Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615 (1962).
256. See id. at 620.
257. See supra note 128 and accompanying text.
258. This analysis assumes no widespread use of mobile devices capable of receiving e-mail, such as Blackberries or other methods of remote access.
259. See supra notes 155-56 and accompanying text.
260. For example, it may be difficult to classify a typical union organizing e-mail that includes information promoting the union and urging employees to vote for union representation. One could argue that such an e-mail is simply a one-way informative message; one could also argue that the e-mail seeks to initiate conversations about unionism and participation in the organizing drive.
261. R. Wayne Estes & D. Thomas Triggs, Lechmere Decision Reshapes Contours of Union Access to Company Property for Purposes of Organization, 27 BEVERLY HILLS B. ASS'N J. 10, 11 (1993).
262. Cf. Addison, supra note 19, at 8
263. (citing Krueger, supra note 25, at 658)
264. (discussing the hypothesis that large transaction costs and highly variable awards in unjust dismissal suits cause increased attention on unjust dismissal legislation). The Division's recommendation probably would not impose a large marginal cost on employers, yet that cost would exacerbate a broader trend of regulated entities facing higher litigation costs under the NLRA. See Rafael Gely, A Tale of Three Statutes. . . (and One Industry): A Case Study on the Competitive Effects of Regulation, 80 OR. L. REV. 947, 984-85 (2001) (stating that the NLRA has higher litigation costs than the RLA).
265. See supra notes 62-71 and accompanying text.
266. See supra notes 145-50 and accompanying text.
267. See, e.g., NLRB v. Local Union No. 1229, 346 U.S. 464, 474-77 (1953) (permitting discharge based on collective action that was insubordinate, disobedient, or disloyal).
268. Wash. Adventist Hosp., Inc., 291 N.L.R.B. 95 (1988).
269. Id. at 103.
270. Id. at 102-03.
271. See, e.g., Timekeeping Sys., Inc., 323 N.L.R.B. 244, 249 (1997) (expressly distinguishing Washington Adventist and finding that use of employer's e-mail system to send messages criticizing employer was protected activity, particularly given that personal e-mails had been allowed previously);
272. Malin & Perritt, supra note 5, at 57 (arguing that employers should have to prove an actual, significant disruption before legitimately restricting employee e-mail solicitations).
273. Cf. CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1022-23 (S.D. Ohio 1997) (finding a legitimate claim for trespass against a spammer that sent so much e-mail to plaintiff's servers that it caused an appreciable reduction in system performance).
274. See supra notes 125-31 and accompanying text.
275. Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
276. See id. at 541
277. (holding that an employer may exclude nonemployee organizers from its premises unless the organizers can "establish the existence of any 'unique obstacles' that frustrated access to ... employees" (citation omitted)). One of the Supreme Court's primary rationales for the distinction between employee and nonemployee communications is that employees' right to discuss collective representation is directly protected by the NLRA, yet nonemployees, such as unions, possess only a "derivative" right to communicate with employees. See id. at 533
278. (citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1955)). A union's right is derivative because it exists solely to assist employees in the exercise of their direct right to make a free and informed decision whether to unionize. See Babcock & Wilcox, 351 U.S. at 113. See generally Hirsch, supra note 105, at 899-905 (discussing Lechmere).
279. The meaning of "discriminate" varies widely among the courts, but at a minimum, an employer should avoid banning only communications by a certain union. See Id. at 932-35.
280. See Lechmere, 502 U.S. at 537.
281. "Reasonable" is very broadly defined and alternatives rarely fall short, except in extreme circumstances such as when employees work and live in a remote logging camp. See id. at 539;
282. Hirsch, supra note 105, at 908 n.105.
283. Compare supra note 109 and accompanying text (noting the general subordination of employer property interests to employee organizing interest), with supra notes 174-77 and accompanying text (noting the elevation of employer property interests over any nonemployee interest in organization).
284. See, e.g., Estlund, supra note 105, at 330-33.
285. See generally Robert A. Gorman, Union Access to Private Property: A Critical Assessment of Lechmere, Inc. v. NLRB, 9 HOFSTRA LAB. L.J. 1 (1991).
286. See Hirsch, supra note 105, at 906.
287. See supra notes 174-77 and accompanying text.
288. See NLRB v. Calkins, 187 F.3d 1080, 1088 (9th Cir. 1999).
289. See supra note 105.
290. See supra note 31.
291. See, e.g., supra notes 66-71 and accompanying text (describing recent union Internet organizing efforts).
292. Although the Board indicated that it may address this question in Register-Guard, it failed to do so. See supra notes 74, 79.
293. Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003).
294. See id. at 301-02 (noting that defendant sent six messages to several thousand employees).
295. See id. at 302, 308.
296. Abusive use of Internet resources, such as severe "spamming," may support a trespass to chattel claim by Internet service providers if there is evidence of an actual negative effect on the computer system. See Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219, 1230 (N.D. Ill. 2005) (citing cases).
297. See supra notes 181-82 and accompanying text.
298. See Hirsch, supra note 105, at 909-16
299. (describing problems and arguing that the Board should stop considering state property issues in Lechmere cases and, instead, focus on whether the manner in which an employer attempts to remove union organizers unlawfully infringes employees' NLRA rights).
300. Cf. E. I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 919 (1993) (finding that employer discriminatorily denied union access to its e-mail system, yet reserving question whether union would have had a right to access the system absent employer's discrimination).
301. In cases involving other types of communications, the Board has concluded that employees do not have an absolute right to access an employer's bulletin boards, copy equipment, or telephones. See J.C. Penney, Inc., 322 N.L.R.B. 238, 238 (1996) (bulletin boards),
302. enforced in relevant part, 123 F.3d 988 (7th Cir. 1997);
303. Champion Int'l Corp., 303 N.L.R.B. 102, 109 (1991) (copy machines);
304. Union Carbide Corp., 259 N.L.R.B. 974, 980 (1981) (telephones), enforced in relevant part, 714 F.2d 657, 663 (6th Cir. 1983) (noting that, generally, an employer "unquestionably ha[s] the right to regulate and restrict employee use of company property").
305. See supra note 175;
306. see also Leslie Homes, Inc., 316 N.L.R.B. 123, 129 (1995).
307. See supra notes 145-51 and accompanying text.
308. See Malin & Perritt, supra note 5, at 48-49.
309. The Supreme Court has emphasized that physical invasions of property are akin to deprivation of that property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 435 (1982) (holding that government authorization of the placement of permanent cable boxes on apartment building was an unconstitutional taking).
310. Compare Intel Corp. v. Hamidi, 71 P.3d 296, 308 (Cal. 2003) (noting that the sending of unwanted e-mails did not cause "any physical or functional harm or disruption"),
311. with CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1019 (S.D. Ohio 1997) (describing assertion of Internet service provider that receiving massive volumes of e-mail can place a significant burden on network equipment).
312. See supra note 193.
313. A trespass of chattel claim, unlike real property trespass, requires proof of harm. See Hamidi, 71 P.3d at 302-03.
314. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 539 (1992) (noting that employers may law-fully exclude nonemployees in some situations where "nontrespassory access to employees may be cumbersome or less-than-ideally effective").
315. See supra note 175 and accompanying text.
316. See supra note 132 and accompanying text.
317. See supra notes 132-33 and accompanying text.
318. See Hirsch, supra note 105, at 921.
319. Cf. supra notes 24-27 and accompanying text. In addition to increasing political support for the NLRA, more hospitable access rules could reverse unions' move to non-NLRA organizing by reducing the need for them to contract around Board rules. In particular, some unions form agreements with employers that provide worksite access to employees-and frequently neutrality promises from employers.
320. See, e.g., Alden N. Shore & Alden Naperville v. Serv. Employees Int'l Union, Local 4, 120 Lab. Arb. Rep. (BNA) 1469, 1474, 1510 (2004) (Malin, Arb.) (finding that employer violated agreement to provide union access to employer's property). These unions must presumably give up something in exchange. If, however, unions already had access rights under the Board's rules, they would not need to contract around those rules and would have more resources for other NLRA-regulated activities, such as serving already-represented employees. The result would be an NLRA that is more valuable to unions. Thanks are owed to Martin Malin for this insight.
321. See supra Part II.
322. Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966).
323. See supra note 175.
324. See Tech. Serv. Solutions (Tech. Serv. II), 332 N.L.R.B. 1096, 1099 (2000)
325. (citing Textile Workers v. NLRB, 388 F.2d 896, 906 (2d Cir. 1967);
326. Excelsior, 156 N.L.R.B. at 1243).
327. Authorization cards are signed affirmations by employees indicating that they wish to designate a union as their collective-bargaining representative or that they want an election to determine whether to choose the union as their representative. See Penn. State Educ. Ass'n-NEA v. NLRB, 79 F.3d 139, 144-45 (D.C Cir. 1996)
328. (describing types of authorization cards). Prounion legislators have recently introduced a bill entitled the Employee Free Choice Act, H.R. 800, 110th Cong. (2007), which would require employers to recognize a union that obtains cards expressing the desire for representation from a majority of unit employees. See id. §2(a).
329. This bill would eliminate an employer's current right to request an NLRB-run election when faced with authorization cards indicating a union's majority support. See Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 304-06 (1974).
330. Excelsior, 156 N.L.R.B. at 1239-40, 1244 n.20.
331. Id. at 1244 n.20.
332. See Tech. Serv. Solutions, 324 N.L.R.B. 298, 305 (1997) (Gould, Chairman, concurring).
333. But see Tech. Serv. II, 332 N.L.R.B. at 1099 (emphasizing that Excelsior does not apply until the Board orders an election, unless there is a finding that employees were inaccessible).
334. Cf. G. Micah Wissinger, Note, Informing Workers of the Right to Workplace Representation: Reasonably Moving from the Middle of the Highway to the Information Superhighway, 78 CHI.-KENT L. REV. 331, 344, 347 (2003) (suggesting that e-mail addresses should be part of Excelsior information or that employees should be notified of a website supporting a union with a bona fide interest in representing them).
335. See Litton Sys., Inc., 173 N.L.R.B. 1024, 1030 (1968);
336. Livingston Shirt Corp., 107 N.L.R.B. 400, 409 (1953).