In The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007), the National Labor Relations Board (NLRB), in a 3-2 decision, upheld an employer’s “nosolicitation” policy that prohibited employees from using the employer’s e-mail system for any “nonjob-related solicitations.” At the same time, the NLRB announced and applied a new standard for deciding whether an employer has violated Section 8(a)(1) by discriminatorily enforcing solicitation policies. Both of these holdings are important for employers who are potential targets of union organizing.

The employer policy at issue in the Register-Guard case prohibited the use of e-mail for any “non-job-related solicitations.” According to the evidence, the employer allowed a number of nonwork- related employee e-mails, but consistently disallowed e-mails urging support for groups or organizations. The employer issued written warnings to an employee who sent union-related e-mails, leading the union to file unfair labor practice charges. The case was the subject of a rare oral argument before the full NLRB.

In its Register-Guard ruling, the NLRB has declared that employees have no statutory right to use an employer’s equipment for organizing purposes. The NLRB thus distinguished email use from face-to-face solicitation, which cannot be prohibited during non-working time. Therefore, the maintenance of an employer’s email policy alone, absent discriminatory enforcement, does not violate Section 8(a)(1) of the National Labor Relations Act.

Equally important is the NLRB’s holding regarding the alleged discriminatory application of the no-solicitation policy. The NLRB decision, for the first time, clarifies that “discrimination under the Act means drawing a distinction along Section 7 lines.” The NLRB adopted the reasoning of two appeals court cases involving the use of employer bulletin boards, where the courts distinguished between personal non-work-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. The NLRB overruled its past precedent that had failed to draw these important distinctions.

Applying its new standard in Register-Guard, the NLRB found that the employer had permitted a variety of personal, non-work-related e-mails, but had never permitted e-mails to solicit support for a group or organization. Therefore, the employer did not discriminate along Section 7 lines by applying its e-mail policy to prohibit e-mails soliciting union support. However, the NLRB found that one contested e-mail was not a solicitation, but simply a clarification of facts surrounding a recent union event. The board found that the employer’s enforcement of its no-solicitation policy with respect to that e-mail was unlawful.

While it remains to be seen how the courts react to the newly announced NLRB standard, employers who are targets of union organizing should review their e-mail and solicitation policies to be sure that they comply fully with the NLRB’s Register-Guard decision. The new NLRB standard resolves thorny issues regarding varying types of solicitations and recognizes the right of employers to control the use of their own business equipment.