Submission to the Adelaide International Workplace Conflict Conference, 21-23 April 2004, Adelaide, Australia.

Introduction
For more than a decade now, unions have become increasingly dependent upon the new communications technologies – in particular, email and the web. Nearly all major unions in the developed countries now use email for most of their communications and often have elaborate and comprehensive websites.
Unions were encouraged to do so by many advocates of the new technologies (including this writer) in the belief that by equalling employers in exploiting the new possibilities, unions would be able to level the playing field and develop a countervailing force to global corporate power.
In many ways, this has been a success story. Unions have recruited new members online. They have been able to build strong solidarity campaigns, sometimes even on a global scale, and have been able to renew to a certain degree the nearly-forgotten tradition of international trade union solidarity. By adopting the new technologies, they have sent a strong message to their members, potential members, and employers that they intend to stick around in the digital era, and that unions are still relevant.
But even early on in this process, there were some concerns. As early as 1997, I attended the 6th IT Forum of the European regional organization of FIET, now Union Network International (UNI), a global network of white collar unions. In the published report on a workshop held there, the trade unionists (all working in the IT sector) “expressed regret at the widespread practice of banning network use [by unions] in companies” and noted that “in one case, an employee representative was even dismissed for allegedly using the Internet too much.”
Those early discussions led FIET and UNI to launch a global campaign entitled “online rights for online workers” which aimed to secure the rights not only for trade unions to use the new electronic communications in the workplace, but also to ensure a degree of privacy for employees. The unions involved took the view that what was needed was legislation on both national and European levels, as well as even a possible Convention of the International Labour Organization to ensure such rights.
It was also widely assumed that without legislation or workplace agreements ? and draft model agreements were drawn up – unions would find themselves cut off from their members during the workday, unable to communicate.
Today, seven years later, we can look back and see that on some points the fears of trade unionists proved to be unfounded, while other challenges have arisen which were totally unanticipated.
In this paper I will argue the following main points:
1. In many workplaces, trade unionists have full access to their members through electronic media such as email and the web – usually without the state or collective bargaining playing any role.
2. In those cases, the question of employer monitoring and surveillance of trade union activities becomes central.
3. Nevertheless there are still examples of employers denying unions access to their members (and vice versa).
4. The challenge for unions is therefore two-fold: to ensure access to the electronic workplace and at the same time, to reduce or eliminate employer surveillance and monitoring of union activities in the workplace.
For many, access is not the problem
Remembering the concerns of the participants in UNI’s IT forum in 1997 (and afterwards), I thought it might be useful to ask trade unionists today if access to the Internet in general and to their unions in particular is still a problem in 2004.
To be honest, I expected many of them to point to precisely that problem. Based on the experience of one union I work closely with in the U.K. — a union whose employer denies its members access to external websites, including the union’s — I was surprised by the results.
This survey was considerably larger than one we did for UNI in 1999-2000 in which only 40 people participated. The current survey, publicized to the subscribers to LabourStart’s email mailing list, had 27 times as many respondents – and a totally different picture emerged.
1,088 trade unionists responded to the survey on the LabourStart website asking about their access to the Internet in general and to trade unions in particular. The survey took place in March 2004. It is not a representative sample but is indicative – perhaps – of broader trends.
The respondents were almost equally divided between men and women (52% and 48%, respectively).
The age breakdown reflects the actual situation in the trade union movement today, with 92% of the respondents being over the age of 30, and over 70% of the total being over the age of 40.
The largest group of respondents came from Canada (289), followed by Australia (203), the USA (195), and the United Kingdom (156). There were smaller groups of participants from more than a dozen other countries.
The results revealed that the overwhelming majority — indeed, nearly all the respondents — not only have access to both email and the web while at work, but have access to their unions through the new electronic media.
984 respondents have access to email at work and only 76 said they did not. There was only slightly less access to the web, with 944 responding in the affirmative and 106 (less than 10%) saying they did not have web access at work.
Nearly all those who have access to the web say that they can access their union’s website as well. Only 106 said they cannot, while 914 said they could.
The numbers fall slightly when we asked “is your employer aware that you can access your union’s site” – only 877 replied in the affirmative, while 116 said “no”. This indicates that a certain number of trade union members are accessing their union websites without the employer’s knowledge, but it is a very small number. (877 of 914 who access their union websites say that their employers are aware that they do this – that’s 96% of those who responded.)
We asked how trade unionists obtained permission to access the union website from work. Only 32 selected “legislation”, indicating that this is not a significant source of permission. 209 responded “collective bargaining”, and all the rest (78%) indicated either “other” or did not respond.
It appears that trade unionists are accessing their union websites with the permission of the employer, but in the vast majority of cases, this permission does not derive from legislation nor from collective bargaining. One has to assume that these are either informal agreements or the union members are simply not asking for permission.
The same picture becomes clear when we asked trade unionists if they could send or receive emails at work – slightly more (942) replied in the affirmative to this question than to the question about the web. Once again, in the overwhelming majority of cases (901 affirmative responses), the employer is aware that trade unionists can contact their unions – and be contacted by their unions – at work. And once again, neither collective bargaining (190 affirmative responses) nor legislation (24 affirmatives) seem to be the souce of the permission trade unionists believe they have for using email to communicate with their unions. Once again, the source seems to be primarily either informal arrangements with the employer, or simply not asking.
Some highlights of this survey include the following:
The group surveyed seem to be atypical in their ability to access the internet (both web and email) while at work. The vast majority of workers in the world do not have such access.
They also seem atypical in that so many of them seem to have no difficulty at all communicating with their union via the net and while at work. We know that there are still many workplaces that restrict use of the net to specific websites and block access to others.
Trade union access to the net does not seem to have been a major topic in collective bargaining nor in legislation. Several years ago, it was believed by those of us who were concerned about these issues that draft agreements with employers and changes in the law would be necessary to ensure union access to its members in the digital. This has not turned out to be the case. Informal arrangements – including not asking for permission – seem to have prevailed.
That having been said, informal arrangements are far less secure that legal and contractual guarantees. Nothing prevents the employer in these cases from deciding to shut down employees’ access to their union websites.
Finally, the near-universal access by employees to their union websites and their ability to send and receive union-related emails, while positive, does not address the question of employer monitoring. (More on this in a moment.)
Denial of access persists
Despite the results of the LabourStart survey mentioned above, denial of access to union websites and email communications between unions and their members at the workplace is still a problem for many workers.
In the 21st century, such denial of access cuts off the oxygen for unions. Unions which cannot communicate with their members in the workplace will suffocate – and disappear.
Denial of access to the net was a central issue in a dispute in Providence, Rhode Island in April 2004. Nearly 400 teachers faced a ban on using email to contact their union and campaigned to get the school board to change its policy. The union argued that it had the legal right to contact its members and that the ban was a clear violation of the law. On 9 April the local school board gave in and accepted the union’s right to use email.
In Britain, the 7,000-member probation officers union Napo is also prevented by the employer from using the Internet to communicate with members. The union finds itself in the difficult situation of being able to email members at work, but unable to suggest to them in the emails that they click on a link and visit the union website – which is blocked. Union officials hope to resolve the issue through informal discussions with the employer.
Sometimes informal discussions are not enough and unions are forced to pursue more aggressive tactics. For example, in February 2004, more than 200 union members at a Department of Work and Pensions office in Liverpool staged a wildcat strike to protest management’s decision to block email use by a union representative.
The examples cited above all refer to workplaces where there is access to the Internet, but workers are unable to communicate with their unions.
It must always be remembered that the vast majority of workers, even unionized workers, do not yet have this access at work. (I am speaking globally, of course. In the advanced industrial countries, a very high percentage of workers do have access to the net from their workplaces.)
Employer monitoring and surveillance
Where trade unionists do have access to the net, and can communicate by email and the web with their unions, the problem of employer monitoring and surveillance becomes critical.
“The Naked Employee: How technology is compromising workplace privacy” is a recent book by Frederick S. Lane III. While unions are not central to Lane’s argument, they do appear on the margins of what is becoming a major social issue.
Lane begins by noting how little attention unions have paid to workplace privacy in the past. He attributes this to “the difficult and more high-profile struggles required to protect jobs, wages and worker safety. The combination of these factors has created a situation in which employee privacy in the workplace is virtually nonexistent.”
In other words, unions are essential to ensure a minimum of privacy in the workplace. And so is the law.
In theory, the law (at least in the U.S.) protects workers from surveillance by employers. Referring to the National Labour Relations Action (NLRA) passed in the 1930s, Lane says that “most of the core provisions of the NLRA remain intact, and one of the issues they directly address is the issue of surveillance of employees. Specifically the act bars employers from spying on employees engaged in union activity.”
Passage of the NLRA followed many years of company spying on unions and one is reminded that the issue of privacy in the workplace and the right of unions to private communications with their members is not something unique to the digital age. Lane writes that “Forbidden types of spying include eavesdropping on employee conversations; taping, filming or photographing employees; tapping phones; and/or monitoring attendance at union functions.”
But the NLRA went even further than that. It did not “require evidence that an employer actually engaged in surveillance of union activities; it is sufficient to show that the employer created the impression that such surveillance was taking place, and that the impression of surveillance intimidated employees form engaging in union activity.”
From the union point of view, it’s a great law, and employers even today regret its enactment. The Wall Street Journal expressed concern several years ago that “some office rebels” (meaning trade unionists) “are beginning to chip away at employers’ power over their own computer systems by dusting off the National Labor Relations Act, a Depression-era law passed when the rotary telephone was the last word in desktop technology.”
The Journal need not have worried. Despite the NLRA’s enactment some seventy years ago, it appears that employers today monitor their employees far more than they did in the past.
Lane’s book refers to a number of well-known cases in the US where unions and employers clashed over the issues of electronic surveillance and workplace privacy.
One case involved engineers at Pratt & Whitney in Florida. Two union officers, employed by the company, used email to reach out to some 2,000 employees. They managed to send out ten mass mailings through the company’s email system before anyone in management noticed – and then they were suspended from their jobs. Eventually the union and the company reached an agreement on use of the email system.
Another case involved Hawaiian Airlines which clashed with its pilots union over a website set up by one of its members, Robert Konop. On that website, pilots could exchange information and criticize management. One of the company vice presidents managed to get passwords to access the union site. He then disclosed the contents of the site to a rival faction within the union (one which was more sympathetic to management). The union took the company to court, which ruled that the airline may have violated the Stored Communication Act, which forbids unauthorized access to stored material. “More significantly, the court ruled that Konop’s website constituted ‘union activity’ under the terms of the Railway Labor Act (which also covers airlines), and that by viewing the password-protected site, the Hawaiian Airlines executive was engaged in unlawful surveillance,” writes Lane.
A third, well-documented case – also concerning an airline – has chilling ramifications.
During contract negotations in 2000, Northwest Airlines sought a court order to seize the hard drives of union activists from their home computers. The company was alleging that the workers were using electronic communications (not from the workplace, but from home) to coordinate an illegal sick-out. “The mere issuance of the subpoena,” writes Lane, “sent shock waves through the offices of both labor and employment lawyers.”
The question of workplace privacy has also been the focus of much attention in Britain in recent years.
Both the European Union and the British government have taken some positive steps which have been welcomed by the unions. Most recently, the Trades Union Congress has hailed the publication by the government’s Information Commissioner of a “Monitoring at work code of practice” which reflected union concerns expressed since the mid-1990s. TUC General Secretary Brendan Barber was quoted as saying that the proposed code “makes clear to staff that they must be told if, how and why their email, phone calls, internet use and other behaviour is being monitored.”
Though the new code is certainly welcome, it is important to remember that the National Labor Relations Act in the U.S. offers strong protection against employers snooping in the workplace, and yet this has had minimal effect. Spying on workers by reading their emails, tracking the websites they have visited, and monitoring them with hidden and open microphones and video cameras, is now pervasive. By the year 2000, according to the American Management Association, 45% of employers monitored employee phone calls, computer use and email. Today that figure is certainly even higher.
Australian unions have also been concerned with this problem.
In 2000, Maria Gencarelli, an employee of the airline Ansett and a delegate for the Australian Services Union, was sacked for sending around a newsletter to co-workers. The newsletter focussed on bargaining issues, and Maria was just doing her job as a trade unionist. The union took her case to court and a judge ruled that the company was wrong and awarded compensation to Maria. At the time, unions in both New South Wales and Victoria launched campaigns to change the law.
Earlier this month (April 2004) the New South Wales Labor Council in its online weekly newsletter, “Workers Online” reported that unions had won a major victory in privacy laws announced by the Carr Government. The victory followed a four year campaign by the unions and according to “Workers’ Online”, New South Wales is the first Australian state to prohibit employers filtering union emails through their office servers.
The unions emphasized that such filtering was a persistent problem, and gave the example of employers like Channel Seven, which “prevented unions from communicating with members during industrial action by filtering out all messages coming from the union”.
The new legislation requires employers to secure a court order before they can covertly spy on worker emails. It also obligates them to develop a code of email usage in consultation with workers before they can overtly monitor usage.
What unions need to do
The problem of how trade unions function in the new environment of the electronic workplace is a complex one. There is no single, simple solution.
What follows are some suggestions for steps unions should take to ensure that the new communications technologies become tools, not obstacles, for trade unions.
1. It is possible to reach agreement with many employers and unions have many examples of best practice to emulate here. The fact that over 90% of respondents to the 2004 LabourStart survey reported no problems is encouraging. We have given examples of employers allowing access or stopping surveillance only after industrial actions or court battles, but in the vast majority of cases, employers seem to have accepted that workplace privacy is a sensitive issue and are prepared to work with unions on this.
2. Even though few respondents pointed to legislation as being a factor in securing their rights to communicate with their unions, the experience of the USA (with its National Labor Relations Act), the new laws and codes proposed in Australia, Britian and elsewhere do indicate that many feel a pressing need for governments to be involved.
3. Even with employer agreement and even with good laws, unions still need to take measures to ensure that they can continue to use the new communications technologies in the event of industrial action or other contingencies. To do so, at the very least unions should host their websites on external servers independent of the employers (and not host them on the employer’s intranet). They should also (where possible) obtain the home email addresses of their members.
4. In fighting for the right to private communications between workers and their unions from the electronic workplace, unions should be careful to distinguish this demand from one insisting on unrestricted access to the web. Employers clearly have a right to prevent employees from visiting offensive websites, or from excessive private use of the net. But those codes of practice must be agreed with the union, and of course the union must play a role in any disciplinary procedure taken against any employee. Employers must not be allowed to use the problem of excessive private use or the downloading of jokes or offensive material as an excuse for blocking access to union sites.
In mentioning those points, I have to confess to having no solution to one particular issue. If a worker wants to communicate privately with her union, right now there really is no secure way to do so from the workplace. Even if employers promise to not snoop, or are legally bound not to snoop, the very nature of the technology makes nearly all online communications public. There is very little privacy on the net. Which is why net privacy experts always remind us that an email message is more like a postcard than a letter.
Workers who want to communicate with the union from their home computers may enjoy a far greater degree of security and can use encryption software such as PGP to keep their correspondence private. But no encryption would do them any good at the workplace, as employers can at any time take back the computers and find any passwords or codes.
Whereas previously a worker could whisper something to a union representative by the coffee machine or water cooler and be relatively certain no one was listening, this is not the case with email or the web. Someone is almost always listening.
In the end, the question of what kind of access employees have to the net, and whether they can communicate with their unions from the workplace, is determined not so much by law or even collective agreement as by the power of the union.
Where there are strong unions, as in the Nordic countries, this is largely a non-issue. Where unions are weak or non-existent, employers will do what they want.