Federal Court Determines E-mails Promoting Union Membership are “Commercial” for Purposes of the CAN-SPAM Act

On July 12, 2007, a federal judge denied a union's motion to dismiss in Aitken v. Communications Workers of America, No. 1:06cv1161 (E.D.VA), after ruling that certain pro-union, anti-Verizon emails sent to Verizon employees fall within the scope of the CAN-SPAM Act. The case arose after certain members of the CWA, acting as agents of the CWA, allegedly created Yahoo e-mail addresses using the names of nineteen Verizon managers without consent, and used those e-mail addresses to send unsolicited e-mails to Verizon employees at their Verizon business e-mail addresses. The e-mails were not identified as advertisements, but urged the recipients to join the CWA. Several of the Verizon managers sued, alleging among other things, misappropriation of their names and violation of the CAN-SPAM Act.

The court determined that because the e-mails promoted union representation, which is a commercial service, the e-mails were commercial speech, subject to regulation by the Act. It reasoned that the statutory purposes of labor unions, i.e., dealing with employers concerning grievances, labor disputes, wages, rates of pay, and other terms and conditions of employment, are all services performed for a fee in the marketplace, both by competing unions and by other commercial enterprises, such as law firms or mediators, with whom the CWA effectively competes.

The court, noting that a message concerning working conditions or benefits at Verizon might have more credibility coming from a putative Verizon manager than from an outsider, further determined that the e-mails contained misleading header information that may have affected the recipient's opinion of the value of joining the CWA. Accordingly, it concluded that it would be inappropriate to conclude as a matter of law that the emails do not violate the Act.

Note: This case may have implications for newspapers and other employers seeking to protect their e-mail systems from non-business uses by employees.

First Published:
August 08, 2007