In this case, the employer maintained a policy prohibiting the use of its internal communications system to solicit or proselytize for commercial ventures, religious, or political causes or outside organizations or other non-job related solicitations. The employer knew that employees were sending and receiving personal emails, such as party invitations, baby announcements, offers of sports tickets, and the like, on the company's email system, but it did not reprimand them for doing so. However, the employer disciplined one of its employees, who also was the president of the union representing its employees, for violating the policy by sending a union-related email to coworkers over the company's email system.

In its initial decision in December 2007 (The Guard Publishing Co., 357 NLRB 1110 (2007)), the Board found that the employer did not violate the NLRA and had not discriminatorily enforced the policy. The Board held that in order to prove unlawful discrimination, the employer's actions must involve the disparate treatment of activities or communications of a similar character because of their union or other protected status. The Board concluded that the fact that the employer had allowed employees to use its email system for purely personal purposes did not require it to allow employees to use it for union purposes.

On review, the U.S. Court of Appeals for the DC Circuit found that the employer had inconsistently enforced the company's policy by disciplining the union official for using the company's email system for union solicitation, while allowing employees to email non-union related messages of a personal nature. The DC Circuit Court noted that the company's policy did not itself draw a distinction between personal and organizational solicitation. See Guard Publishing Co. v. NLRB, 571 F.3d 53 (DC Cir. 2009).

On remand, a "new" Board – one with a majority of three liberal democrats – accepted the ruling of the DC Circuit Court and held that the company violated the NLRA by discriminatorily enforcing the policy. See The Guard Publishing Co., 357 NLRB No. 27 (July 26, 2011).

Going forward, employers can expect that this Board will measure whether an employer has discriminatorily enforced email policies against union-related solicitations by examining whether a company has permitted the use of its email system for personal messages and solicitation, beyond the Board's recognized exception for charitable solicitations under its "isolated beneficent acts" rule.

Of particular concern will be whether an employer can prohibit the use of its email system by employees to circulate pro-union solicitations during union-organizing campaigns. The new Board is likely to take the position that employers will violate the NLRA if they prohibit employees from using company email systems to circulate pro-union materials or discipline employees who do so while allowing the company email system to be used for personal messages. To avoid such a result, employers need to carefully draft email policies to prohibit the personal use of company email systems and to regularly and consistently enforce the policy. Some employers may determine that such a rule is undesirable or impossible to enforce. As an alternative, employers may consider implementing rules governing the use of company email systems that prohibit or limit the number of attachments to personal emails or that limit the number of addressees on personal emails. Of course, the employers will need to regularly and consistently enforce such rules.