In a unanimous decision issued last week in The Register-Guard v. NLRB, No. 07-1528 (D.C. Cir. July 7, 2009), the United States Court of Appeals for the District of Columbia Circuit has reversed, in part, the National Labor Relations Board’s decision regarding an employer’s e-mail policy. Contrary to the Board’s decision in The Register-Guard, 351 NLRB 1110 (2007), in an opinion written by Judge Merrick Garland, the court held that the employer discriminatorily applied its Communication Systems Policy (CSP) and violated Sections 8(a)(1) and (3) of the National Labor Relations Act when it disciplined an employee for using the company’s e-mail system to disseminate union-related solicitations because the employer permitted other employees to circulate personal solicitations and the CSP made no explicit distinction between organizational and personal solicitations. Also noteworthy, because neither party appealed the issue, the D.C. Circuit’s decision did not reach the Board’s general holding that an employer does not violate the Act simply by maintaining a policy barring the use of company e-mail for all non-job-related solicitations, including union-related solicitations.  

The Facts Of Register-Guard

Guard Publishing Company publishes the Register-Guard, a daily newspaper circulated in the Eugene, Oregon area. In 1996, coinciding with the proliferation of electronic mailing, the Company broadened its non-solicitation policy to govern the appropriate use of its communication systems, including e-mail. The Company’s CSP provided, in relevant part: “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.”  

In the years that followed, Register-Guard laxly enforced this policy. For instance, employees sent countless non-job-related e-mails regarding jokes, breaks, community events, births, lunches, and poker games, and did so without warning or reprimand. Employees also were not disciplined when they sent mass solicitations concerning the sale of sporting tickets, party invitations, and the request for services such as dog walking.  

Register-Guard’s lenient CSP enforcement changed in mid-2000 after union president and Register-Guard employee Suzi Prozanski sent a number of union-related communications using the company’s e-mail system. Of particular importance, in August 2000, Prozanski sent union employees two e-mails, one of which asked employees to wear green in support of the union during contract negotiations, the other of which asked employees to participate and support the union in an upcoming parade. Citing its CSP, Register-Guard disciplined Prozanski for her e-mails. According to the company, Prozanski violated the CSP when she employed the company’s communication systems for “union/personal business.”  

In response to this and Register-Guard’s other conduct, the union filed unfair labor practice charges. Finding merit to the union’s charges, the Board’s General Counsel issued a complaint against Register-Guard alleging, among other charges, that the company violated the Act by: 1) maintaining, promulgating, and enforcing an overly broad non-solicitation policy; and 2) discriminatorily enforcing its non-solicitation policy by issuing a warning to Prozanski in August 2000.  

The Board’s Holding

The Board first held that Register-Guard did not violate the Act merely by maintaining a CSP that barred employees from using the company’s e-mail systems for all non-job-related solicitations. As the Board held, “[c]onsistent with a long line of cases governing employee use of employer-owned equipment, the employees here had no statutory right to use the e-mail system for Section 7 matters.” Thus, under the Board’s ruling, a neutrally drafted, uniformly policed, non-solicitation e-mail policy is perfectly lawful under the Act.  

As the CSP did not discriminate against Section 7 (i.e., union or collective) activity on its face, the Board next considered whether the company violated the Act by discriminatorily enforcing its policy. Regarding Prozanski’s August 2000 e-mails soliciting union support, the Board held that Register-Guard had not unlawfully applied its policy. The Board reasoned that while the evidence showed that Register-Guard tolerated personal employee e-mail messages, including solicitations for sports tickets or other similar personal items, there was no showing that Register-Guard permitted employees to use e-mail to solicit other employees to support any group or organization. Based on this distinction between solicitations on behalf of an individual versus an organization, the Board held the discipline was lawfully issued under Register-Guard’s policy and did not violate the Act. The union petitioned the D.C. Circuit for review of this holding.  

The D.C. Circuit Reverses The Board

On appeal, the D.C. Circuit reversed the Board’s decision that Register-Guard properly applied the CSP. The court did not address the propriety of drawing a line barring e-mail system usage based on organizational status. Instead, the court highlighted that the CSP itself made no distinction between solicitations for organizations and those for individuals. The CSP, by its own terms, applied to all “non-job-related solicitations.” Thus, the court held that the Board’s distinction was arbitrary, calling it a “post hoc invention.” Equally significant, according to the court, was that the company’s August 2000 discipline did not invoke the organization-versus-individual line created by the Board. To the contrary, Register-Guard told Prozanski to refrain from using e-mail for “union/personal business”—making it clear that the offense did not depend on whether the solicitation was for organizational or individual purposes. Thus, according to the court, the only difference between Prozanski’s August 2000 solicitations and the solicitations of other employees was that Prozanski’s e-mail related to union matters.  

Because neither party appealed the holding, the D.C. Circuit did not address the Board’s determination that a neutrally drafted non-solicitation e-mail policy barring all non-job-related solicitations, including union-related e-mail communications, does not violate the Act.

Impact of Register-Guard

Though the D.C. Circuit based its holding on the Register-Guard’s specific Communication Systems Policy, it could have a far-reaching impact on employers for the reasons stated below. Many employers have non-solicitation e-mail policies similar to the one scrutinized in Register-Guard. The D.C. Circuit’s decision leaves unchanged the Board’s holding that employers may prohibit union-related communications under a neutrally drafted and applied non-solicitation e-mail policy. If the Board and other Court of Appeals Circuits follow the D.C. Circuit’s approach, employers, at a minimum, should avoid disciplining employees selectively for their union-related e-mail solicitations unless the employer’s policy clearly distinguishes between organizational and personal solicitations and has been uniformly applied to prohibit and punish all non-job-related organizational solicitations.

Nonetheless, it is quite possible that President Obama’s incoming board may subject e-mail policies to even greater scrutiny than the holding of the D.C. Circuit in Register-Guard. Board Chairman Liebman, along with another Board member, dissented in the Board’s 2007 Register-Guard decision and would have found that “banning all nonwork-related solicitations is presumptively unlawful absent special circumstances.” Therefore, employers should consider the very real possibility that the Obama Board may conclude that employer bans on all non-work-related solicitations, absent special circumstances, are presumptively unlawful under the Act, and that employees should have a presumptive right to use e-mail during their nonworking time.