A call for strike action must not be circulated via the company e-mail account

Employees are not entitled to use physical resources of the employer for the circulation of a call for strike action by the trade union to the workforce.

The employer ran a hospital with approx. 900 employees. The employee involved in the proceedings was the Chairman of the Works Council and a member of the ver.di trade union. His employer provided him with a company e-mail account which he used for both company purposes as well as for his work for the Works Council (first name.name@employer.de). The employee used this account to pass on a call by ver.di for strike action to all employees and asked them to take part in the warning strike. He signed the e-mail with his name and the words: “For the ver.di Company Group”. The signature information on the email stated the telephone number of the Works Council office. The employer then sent a letter to the Chairman of the Works Council criticising the use of the company e-mail account and the indication of the telephone extension of the Works Council. During ensuing court proceedings, the employer demanded that the Works Council refrain in future from using physical resources of the company for calling and organising a strike.

Property as a right of defence

The Federal Labour Court, like the previous instances before it, essentially granted the employer’s claim to injunctive relief. Nevertheless, the courts put forward differing reasons for this. While the previous instances assumed that the obligation of neutrality, as standardised in Section 74 Subsection 2 Sentence 1 BetrVG (Works Council Constitution Act), means that a Works Council member is not entitled to use physical resources of the employer for industrial action, the Federal Labour Court based its findings on the civil-law claim to injunctive relief under Section 1004 Subsection 1 Sentence 2 BGB (German Civil Code). According to this, the owner can demand that the disturber refrain from further interference with his property.

No obligation on the employer to tolerate

In the opinion of the First Senate, the employer, as owner of the physical company resources, is not obliged to tolerate the circulation of calls for strike action via its Intranet. The basic right to engage in trade-union activities under Section 9 Subsection 3 Basic Law for the Federal Republic of Germany is not inadmissibly restricted by the claim to injunctive relief. The Senate drew attention to the fact that employees can exercise their right to mobilise the workforce to participate in a strike in various ways.

Use of the employer’s electronic means of communication is just one such possibility – albeit a very effective one. Employees who are members of a trade union are not therefore absolutely dependent on the company IT structure for their trade-union activities. While calls for strike action can be circulated quicker
and more purposefully in this manner, it is not the employer’s duty to cooperate in this by providing own operating resources.

In this context, the Federal Labour Court made it clear that the question of whether the call for strike action is circulated via the company Intranet by a member of the Works Council or by a “normal” employee is not decisive. An employer cannot be generally required to support the coalition-specific involvement of an employee in industrial action against the employer by providing own operating resources.

Conclusion

Employers must not tolerate the use of physical company resources for industrial action. This applies in particular to the company e-mail account and to the company Intranet. In the event of violation, the employer can demand restraint from the employee and also assert this entitlement by way of a temporary injunction.