Sunday, February 19, 2006

Blogging and Section 7 of the NLRA

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When I was at the workplace privacy conference last week at LSU, Rafael Gely (Cincinnati), among others, brought up the possibility that workers who run their own blogs about their companies may be protected by Section 7 of the National Labor Relations Act (NLRA).

The argument goes something like this: Section 7 of the NLRA provides rights to workers to self-organization, to engage in collective bargaining, and to engage in concerted activities for purposes of collective bargaining and for mutual aid and protection (sorry for the loose paraphrase).  In any event, one of the little know aspects of Section 7 is that it does not only apply to workers in a union or in the process of organizing a union. The language of Section 7 is such that it applies to all employees in the workplace who are engaged in concerted activity for mutual aid and protection. See NLRB v. Washington Aluminum, 370 U.S. 9 (1962).

Which brings me to Rafael's point: shouldn't Section 7 protect bloggers who blog about work on their own time and who are critical of their employers on their blogs?  Is this not a form of protected concerted activity under Section 7, which if the employer interferes with (perhaps through firing the employee), should subject that employer to an unfair labor practice charge under Sections 8(a)(1) and 8(a)(3) of the NLRA?  And, of course, one of the possible remedies for employer anti-union discrimination is reinstatement.

And before you conclude too quickly that there is no concerted activity under such circumstances, cases have held that individual employees are acting in a concerted matter when they act on behalf of others in protesting conditions at work.  NLRB v. City Disposal Systems, 465 U.S. 822 (1984).  Moreover, one could argue that to the extent that other employees are participating on the employee's blog through a back and forth on the comments section this is the very definition of concerted activity.

In ant event, I would be very curious to hear what individuals have to say about this theory and whether blogging might actually help to revive not only labor organizing activities, but also industrial democracy in the workplace by giving employees more of a say at work.  This could occur by not only giving employees more access to other co-employees outside of the workplace through blogging, but also by giving union organizers a much needed tool for organizing employees in light of the difficult company access rules for such organizers since Lechmere.

PS

https://lawprofessors.typepad.com/laborprof_blog/2006/02/blogging_and_se.html

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Comments

Interesting legal theory, and one that seems entirely plausible to me -- though I'm not sure the current Board would go along. On the value of blogs as an organizing tool, you might look into some of the work that Art Shostak (Sociology, Drexel) has done on "Cyberunions". I'm not sure if he's specifically addressed blogging, but I know he's focused more generally on the use of electronic communication by unions.

Posted by: Eric Fink | Feb 19, 2006 6:18:56 PM

The answer to whether blogs are Section 7 activity is a big fat "maybe." It will depend primarily on the subject matter. If the blog is merely flaming the employer, it won't be protected (see Jefferson Standard). If the blog is used to organize workers or to help enforce a collective bargaining agreement (see City Disposal), then it's protected. The big question is the vast grey area in between. As for the broader question of the internet and unions, Richard Freeman has an NBER working paper on this issue called “From the Webbs to the Web: The Contribution of the Internet to Reviving Union Fortunes.” (National Bureau of Economic Research Working Paper No. 11298).

Posted by: Jeff Hirsch | Feb 19, 2006 10:13:38 PM

Great question. I agree that, assuming a workplace is currently unorganized, you would need to show some participation by other employees.

Posted by: Joseph Slater | Feb 20, 2006 8:03:04 AM

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