As we reported previously, in December 2007 the National Labor Relations Board issued a decision relating to company e-mail policies in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (2007), holding that an employer (i) may restrict the use of its computer systems to business related uses only, and (ii) could distinguish between personal and organizational solicitation in enforcing its no-solicitation policy.

Earlier this week, in The Register-Guard v. NLRB, No. 07-1528 (D.C. Cir July 7, 2009), the D.C. Circuit issued its decision reversing, in part, the Board’s decision.

Neither party requested review of (and, thus, the court did not address) the Board’s general holding that allowed restricting the use of company e-mail to business purposes.  The Court also chose not to address the Board’s position on distinguishing between the types of solicitation. Instead, it held that based on the facts of this particular case — where the policy in question did not actually make a distinction between types of solicitation — the employer could not discipline an employee for a union-related solicitation. As discussed below, the decision highlights the risks to employers who act based on the current Board law in the absence of a clear written policy that makes an explicit distinction between types of solicitation. Moreover, even if employers have such a policy now, the future Obama Board is likely to modify the current law.

The Board’s decision in Register-Guard addressed two key areas involving e-mail (and other) solicitation. First, the Board held that an employer may restrict use of its computer systems to business-related uses only. The Board reasoned, consistent with prior holdings involving other company-owned communication equipment, that an employer’s e-mail system is company property that employees have no Section 7 right to use. 

Second, the Board redefined its discriminatory enforcement analysis for no-solicitation policies.  The Board concluded that a company did not violate the Act by enforcing its policy against e-mails soliciting support for the union, while permitting certain personal e-mail use, because it may distinguish between organizational and personal solicitations.  According to the Board’s holding, in order to establish discriminatory enforcement of a no-solicitation policy, evidence of “disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status” must be demonstrated.

Register-Guard’s Communications Systems Policy (“CSP”) provided, in relevant part: “Communications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations or other non-job-related solicitations.”  The company, however, did permit certain personal solicitations by employees, such as for parties, sporting events and birth announcements.

The union representing some of Register-Guard’s employees filed unfair labor practice charges when the employer disciplined the union president, employee Suzi Prozanski, for using the e-mail system to send several union-related messages.  The first of these emails clarified certain misinformation that previously had been circulated by a union member and did not constitute a solicitation prohibited by the CSP. Accordingly, the Board and the D.C. Circuit both held that the company unlawfully “disciplined Prozanski for sending a union-related e-mail.”

The other e-mails for which Prozanski received a disciplinary warning asked employees to wear green in support of the union during contract negotiations, and to participate in the union’s entry in an upcoming local parade. The Board held these e-mails to be solicitations to support the union. It then found that while certain personal solicitations were permitted by the company, solicitations on behalf of groups or organizations were not permitted. Based on this distinction, the Board held the discipline for the union solicitation e-mails was consistent with company practice and lawful.

The D.C. Circuit granted the union’s petition for review and reversed the Board on the facts relating to the discipline imposed which the Board found to be lawful. Assuming the propriety of, and refusing to critique, the Board’s newly articulated distinction between solicitation for groups and for individuals, the court held that the facts demonstrated that such a distinction, in this case, was “a post hoc invention.” The Court noted: (i) this rationale was never invoked by the company prior to the NLRB General Counsel filing a complaint; (ii) the CSP made no such distinction but, rather, forbade all non-job-related solicitations; and (iii) the disciplinary warning to Prozanski directed her to “refrain from using the Company’s systems for union/personal business.” According to the court, the only difference between Prozanski’s solicitations and permitted solicitations was that Prozanski’s e-mails were union-related.

The D.C. Circuit based its holding on facts relating to the language and enforcement of the CSP which are similar to most employer computer systems policies in barring solicitation and permitting, at least in terms of enforcement, personal e-mails that are not solicitations. Thus, while the Board’s broad holdings in its Register-Guard decision were not renounced, the court’s decision creates significant risk for any employer seeking to rely on its computer and/or nosolicitation policies to bar the use of company e-mail systems for union organizing while permitting the system to be used for other personal solicitations.  As the D.C. Circuit’s decision highlights, if a distinction is not clear on the face of the policy, or if the policy is not consistently enforced, a post hoc distinction will not be accepted.

Moreover, the Board’s Register Guard precedent could well be short-lived. Board Member Liebman, who dissented in the Register-Guard decision, is now Chairwoman of the NLRB and she will soon lead a Board controlled by President Obama appointees.  As such, when the newly constituted Board gets the opportunity to reexamine the holdings of Register-Guard we would expect a significant change to the Board’s position on this issue.


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