The U.S. Court of Appeals for the D.C. Circuit overturned a National Labor Relations Board (Board) decision on July 1, 2009, finding that an employer illegally disciplined its employee for sending union-related e-mails to co-workers. (Guard Publishing Company d/b/a The Register Guard v. NLRB, U.S. No. 07-158, 7/7/09).

The underlying Board case involved an employee (and union president) who was disciplined for sending three e-mails to co-workers regarding the company’s incumbent union. (The Guard Publishing Company d/b/a The Register Guard, 351 NLRB 1110 (2007)). The employer maintained a Communications System Policy that prohibited employees from using any company communication system (including e-mail) to “solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other nonjob- related solicitations.”

In its original 2007 decision, the Board determined that: (1) the employer’s written policy prohibiting general “non-job-related solicitations” was lawful; but (2) the employer discriminately enforced the policy by disciplining an employee for sending general union information via e-mail when it had not previously disciplined employees for using its e-mail system for other non-work-related messages. The Board determined, however, that the employer lawfully disciplined the same employee for sending two other e-mails to employees that solicited employee action in support of the union (wearing union colors and volunteering for an upcoming union parade). The Board held an employer may lawfully distinguish between “personal” solicitations and solicitation in support of a group/ organization.

Both parties appealed the decision to the D.C. Circuit Court of Appeals. In its decision, the D.C. Circuit enforced part of the Board’s decision and rejected another part. Because this case was decided on narrow, factual grounds, the Board rules regarding employee use of e-mail systems are arguably unaffected by this ruling. The ruling, however, is likely to be reviewed by the Board itself under the direction of its new Chair, Wilma Liebman, who filed a vigorous dissent from the original Board decision.

Guard Publishing Company d/b/a The Register Guard v. NLRB

The issue in this case was the employer’s historical application of its Communication System Policy. The evidence showed that the employer allowed a host of employee e-mail messages, including baby announcements, party invitations, solicitations for sports tickets, notices regarding community events and poker games, and requests for volunteers for the employer’s annual United Way campaign. Moreover, there was no record that the employer had previously disciplined employees for personal use of the e-mail system. Faced with this information, the employer argued that while it was clear some personal use of the e-mail system was tolerated, there was no evidence that it ever permitted employees to use e-mail to solicit other employees to support any group or organization. The Board accepted this distinction between solicitations on behalf of individuals (permitted) and solicitations on behalf of groups (prohibited).

The D.C. Circuit was not so convinced. The court held that the employer’s distinction between personal and group solicitations was simply a “post hoc” explanation concocted to justify the discriminatory application of its policy. The court pointed out that neither the policy nor the corrective actions issued ever mentioned this distinction. The court also took special notice of the fact that the only employee e-mails that ever led to discipline were the union-related e-mails at issue in this case. The court concluded that the employer’s policy enforcement was discriminatory and it set aside the Board’s determination that the discipline was lawful.

The court did not pass judgment on the lawfulness of an underlying policy that permits solicitation on behalf of individuals, but prohibits it on behalf of groups. Significantly, the union did not seek review of the Board ruling that an employer could lawfully prohibit employees from using its e-mail system for non-job-related communications.

Take Away

The Register Guard decision demonstrates that a reviewing court will closely scrutinize both the language of an employer’s communication policy and the manner in which it is applied. An employer still has the ability to craft a policy to its desired specifications (i.e. prohibiting all personal e-mail on the employer’s system, permitting limited personal use but prohibiting solicitation of any kind, or permitting personal solicitation but prohibiting solicitation on behalf of a group). However, if an employer tries to draw fine distinctions – like the employer in Register Guard – a reviewing court will require the employer to state those distinctions clearly and consistently in the text of policy. Courts are inherently skeptical of facially neutral policies that seem to adversely impact union-related communications, so employers must take special care in these scenarios.

Perhaps more importantly, this case provides the first indication that the rules regarding enforcement of e-mail solicitation are likely to change. In the original Register Guard Board decision, Board member Wilma Liebman wrote an especially critical dissent. Liebman disagreed with the conclusion of the Board that a broad policy prohibiting all personal use of employer e-mail use is lawful. She concluded: “[w]here, as here, the employer has given employees access to e-mail in the workplace for their regular use, we would find that banning all non-work-related “solicitations” is presumptively unlawful absent special circumstances.” Liebman wrote this dissent in 2007 as a member of a two-person minority. Under the new Obama Administration, Liebman is now the Chairman of the NLRB, and will likely control a three-member majority. If the Board decides to revisit the issues surrounding employee and union access to employer e-mail systems – and we believe it is likely that they will – a significant change in the law can be expected. If the Board concludes that broad communication policies that prohibit non-work use are unlawful, whether an employer applies its policy in a non-discriminatory manner will be a moot point.