A federal appellate court recently held that an employer violated federal labor law by disciplining an employee for sending union-related emails to her co-workers. The court disagreed with the National Labor Relations Board (NLRB), finding that "substantial evidence does not support the Board's determination that [the employee] was disciplined for a reason other than that she sent a union-related email." Guard Publishing Co. d/b/a The Register-Guard v. NLRB, No. 07-1528, U.S. Court of Appeals for the District of Columbia Circuit (July 7, 2009).

Factual Background

Guard Publishing Company owns the Register-Guard, a daily newspaper in Oregon. Under the company's policy, "[c]ommunication 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."

Employees used email to communicate about work-related matters, but also communicated about personal matters (such as jokes, baby announcements and party invitations). There was no evidence, however, that employees used the email system to solicit support for any outside cause or organization (other than the company's annual United Way campaign).

In May and August 2000, the Register-Guard sent copy editor Suzi Prozanski written disciplinary warnings for sending three union-related emails to her fellow employees. One email was for the purpose of clarifying what Prozanski, who also was the union president, considered an inaccurate or incomplete company communication. The other two urged union members to wear green on a certain date to support the union's bargaining position and to participate in the union's entry in a town parade. After the administrative law judge held that both company warnings to Prozanski were unlawful, the case was heard by the NLRB.

Legal Background

The NLRB rejected arguments that the email system was the equivalent of face-to-face communications and that it was essentially a "gathering place" at work. Also rejected was the argument that the employer lost its right to enforce its property rights in the communications system because it permitted personal communications. Instead, the NLRB upheld the employer's property rights and further ruled that it is not unlawful to permit personal communications while banning non-business solicitations.

Establishing a clear standard, the NLRB held that "unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status." The NLRB noted that some courts had described illegal discrimination as "unequal treatment of equals."

Applying this standard, the NLRB ruled that the warning given to Prozanski for sending the email providing what she believed to be more complete and accurate information violated federal law because it was more akin to personal communications between employees (which the company had permitted). But the two emails asking the employees to wear green to support the union's cause and to participate in the parade were found to be non-business-related solicitations (which the rule did not permit and the company had not allowed); therefore, the company's warning stemming from these communications was lawful.

Legal Analysis

The D.C. Circuit reversed, in part, the NLRB's decision. The court held that where an employer's email policy does not actually make a distinction between types of solicitation - that is, email solicitation (call to action) and email communication (providing information or clarifying facts) - the employer may not discipline an employee for a union-related solicitation. Neither party requested review of, and the court did not address, the NLRB's holding that allowed restricting the use of company email to business purposes.

Instead, the D.C. Circuit focused on the fact that the Register-Guard's policy prohibited all "non-job-related solicitations," as opposed to "non-job-related communications." The court held that the employer's rationale for disciplining Prozanski, which was accepted by the NLRB, was a "post hoc invention" trying to justify selective application of the policy. In fact, the court found, there was substantial evidence that the Register-Guard had allowed other employees to use its email system for personal solicitation of other employees. Further, the policy had only been enforced against emails containing union solicitations, and therefore the discipline of Prozanski was a discriminatory act based upon the union content of the messages.

Practical Impact

This decision teaches two important lessons. First, employers should be careful to distinguish between solicitations and communications when drafting or revising written email policies, as well as distinguishing between personal and organizational solicitations in such policies. Second, such distinctions must be enforced in a consistent, non-discriminatory manner.

Based on the scathing dissent from NLRB Chair Wilma Liebman in the Register Guard case, the new Obama Board will almost certainly revisit this issue, perhaps affording employees the right to use company email systems for union solicitation and prohibiting employers from adopting policies which selectively prohibit the use of email and communication systems for solicitations on behalf of `outside organizations'.