Among the highly anticipated developments to come under the Obama administration, on Tuesday, July 7, 2009, the D.C. Circuit Court of Appeals reversed the Bush Administration’s National Labor Relations Board precedent that, until now, permitted employers to prohibit union-related e-mail solicitations on their computer systems, while allowing employee solicitations for other personal, non-work-related matters. The court’s decision, though not surprising, is an important one. It dramatically changes the playing field for union-related organizing and mobilization, and requires employers to promptly and effectively revisit their electronic monitoring and solicitation policies and practices.

Guard Publishing Co. d/b/a Register Guard v. NLRB (No. 07-1528, July 7, 2009) involved Suzi Prozanski, a copy editor for the Guard Publishing Company and also the president of the union representing the company’s employees. Guard Publishing Co. had a systems usage policy that prohibited all solicitation activity using the company’s systems. The policy stated: “Communication 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.” Despite this policy – which is similar to many employers’ systems usage policies – the Company did not enforce the policy against or discipline employees for personal e-mails about upcoming parties, breaks, community and sporting events, births, meetings for lunch and other such matters. A few e-mails also sought volunteers for upcoming charity events, including the company’s annual United Way campaign.

Prozanski decided to put the company’s electronic system to use for union business. In May 2000, she sent an e-mail to all employees concerning her impressions of a recent union rally. The company responded by promptly issuing Prozanski a written warning that the e-mail violated the systems usage policy. Prozanski was not deterred. In August 2000, she sent out two more e-mails on behalf of the union. In the first e-mail, entitled “Go Green,” Prozanski called on employees to “WEAR GREEN on Tuesday” to show unity and support for the union’s position in contract negotiations. In another e-mail, entitled “Let’s Parade,” Prozanski called for volunteers to help with the union’s entry in a local parade. The company gave Prozanski another warning for these e-mails, reiterating that she had violated company policy by using work e-mail “for dissemination of union information.”

The union filed an unfair labor practice charge, arguing that the company had violated the National Labor Relations Act by maintaining and enforcing an overly broad no-solicitation policy (in that it prohibited union access to email) and by applying its systems usage policy discriminatorily against union-related communications. The case proceeded to a hearing and then to Board review.

In December 2007, the Board issued an employer-favorable decision, holding that although Prozanski’s first warning in May was not appropriate, the company did not commit an unfair labor practice by issuing Prozanski a warning for her August e-mails. The Board explained that the May e-mail consisted only of a personal observation, not a solicitation prohibited by the systems usage policy. More importantly, however, the Board also held that the company was within its right to discipline Prozanski for her two August e-mails. The Board observed that these e-mails crossed the line by actually soliciting employees to action on behalf of the union, in violation of the systems usage policy that applied to electronic communications and prohibited solicitation on behalf of groups and organizations. Furthermore, the Board majority rejected the union’s contention that the company’s communication policy was unlawful and ruled that employees have no statutory right to use employers’ email systems for union matters.

For the past year and a half, the Board’s decision in Register Guard provided employers with some welcome comfort that a generally enforced anti-solicitation policy that applied to their systems would prevent employees from abusing these systems and using their work time to solicit on behalf of the union. With the D.C. Circuit’s decision from earlier this week, that comfort may now be gone.

In reversing the Board’s finding that the employer lawfully disciplined Prozanski for her August e-mails because they fell under the company’s systems usage policy, the court rejected the Board’s rationale that the discipline was lawful because these e-mails constituted solicitations on behalf of the union. The Board had ruled that while the company may have permitted an occasional personal e-mail about upcoming sports events or lunches, it certainly did not permit employees to solicit on behalf of any organizations or groups. Reasoning that the language of the company’s systems usage policy and the company’s warnings to Prozanski did not explicitly distinguish between organizational vs. individual solicitation, the court held that the company applied its policy in a way that resulted in unlawful discrimination against union activity. Significantly, the D.C. Circuit did not address the Board’s finding that a company policy that bars union access to email on a neutral basis is lawful because the union did not raise that issue on appeal, but instead left that issue to be revisited again in the future by the Board -- perhaps the Obama Board.

Register Guard demonstrates that policy drafting, implementation and consistent enforcement are key to preventing employers’ own electronic systems from falling prey to union mobilization and organizing without the employers’ ability to do anything about it. In that respect, employers should consider the following three basic steps:

  • Evaluate Current Policies and Practices. The initial step should be a review of the systems usage and solicitation policies and practices currently in place. What kind of solicitation activities do your policies permit and prohibit, and to what media (e.g. bulletin boards, e-mail) do they apply? Beyond what is written on paper, how are these policies being implemented? Are they enforced uniformly, or do you occasionally allow certain personal or other solicitation communications while prohibiting others?
  • Understand The Risk. While undertaking this initial audit of current policies and practices, employers should also weigh the relative risks. Knowing that allowing for certain, even minor, solicitation activities may now also pave the way for e-mail use for the purposes of union organizing, consider how important is the continuation of these solicitation-type activities to the culture of your workplace in light of what you determine to be the realistic level of risk of your systems’ use for union purposes.
  • Revise and Implement. Once you have undertaken this initial analysis, it is time to act. Employers should work with legal counsel to make the necessary revisions to their policies and to train management in the uniform, non-discriminatory implementation of these policies to protect themselves from compromising control and/or exposing themselves to liability from unfair labor practices charges.

There is no longer any waiting time – with the D.C. Circuit’s decision on the books and the high likelihood that the Obama Board will preserve or even expand the rights of employees and unions in this area, employers must act now and take the necessary measures to protect the integrity of their electronic communications systems and to retain (or regain) control over solicitation activities in their workplace.