D.C. Circuit Finds Unlawful Discrimination Against Union Emails

In a case involving employee use of a company email system for union-related purposes, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in Register-Guard v. NLRB, No. 07-1528 (July 7, 2009), rejecting the National Labor Relations Board's (the Board's) earlier decision upholding discipline against a union president who sent two union-related emails to fellow employees on the company's computer system. The court granted the union's petition for review and remanded the matter for further proceedings.

The Board's December 2007 Register-Guard decision, 351 NLRB 1110, held that an employer does not violate Section 7 of the National Labor Relation Act (NLRA or the Act) by maintaining a policy limiting the use of electronic communications systems for all "non-job-related solicitations." The Board ruled that employees have "no statutory right to use the [employer's] email system for Section 7 matters," just as an employer may restrict for Section 7 purposes other forms of communication, such as bulletin boards, telephones, and copy machines.

The Board's decision further adopted a new standard for determining whether an employer violates Section 8(a)(1) of the Act by enforcing its email or other solicitation policies in a so-called discriminatory manner-i.e., when an employer prohibits union-related email solicitations but allows solicitation on other topics. The Board found it permissible for an employer to draw a line between charitable and noncharitable solicitations, personal (i.e., car for sale) and commercial sale of products (i.e., Avon), and between business-related and non-business-related purposes. In each case, the fact that union solicitation falls on the prohibited side of the line, in the Board's view, does not alone constitute unlawful discrimination.

The union did not petition the D.C. Circuit to reject the underlying rule of law established by Register-Guard that the company did not violate the Act by maintaining a policy prohibiting email use for all non-job-related solicitations. Instead, the union contended that the Board factually erred in determining that the Guard Publishing Company enforced its policy without discriminating against union activity. The company's written "Communication Systems Policy" provided that:

Communication systems are not be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations (emphasis added).

The union argued that the phrase "other non-job-related solicitations" required the company to uniformly prohibit all personal solicitations in order to prohibit union-related solicitations. The record contained evidence that employees frequently sent emails for personal solicitations concerning social invitations, sporting tickets, and requests for services. The Board rejected the importance of this evidence because the company claimed that in implementing its written policy, it allowed personal email solicitations but not group or outside organization solicitations.

The D.C. Circuit concluded that the Board lacked substantial evidence to find the discipline nondiscriminatory. The company selectively allowed personal solicitations at the same time it prohibited union solicitations, in contrast to the language of its policy. The court rejected the company's claim that it enforced the policy uniformly against any form of "group" solicitation and called this justification a "post hoc invention," which was discredited by the company's earlier statements. The court further noted that "in practice the only employee emails that had ever led to discipline were the union-related emails at issue here."

The D.C. Circuit's decision further emphasizes the important distinction between email solicitation and email communication. Solicitations require a "call to action" while communications simply provide information or clarify facts. The court agreed with the Board's determination that the company unlawfully discriminated against a single email communication from the union president because the company's policy did not prohibit communications and allowed, in practice, any manner of email communications not related to work. The union president's email only clarified facts about a recent union rally and did not contain a "call to action." Thus, employers should note the distinction between solicitations and communications when drafting and revising written policies. Moreover, it is important to distinguish between personal and organizational solicitations in such policies. In addition, these distinctions must be enforced in a consistent manner for employers to withstand challenges to these policies.

The substantive holding of the Board's 2007 Register-Guard decision, allowing employers to selectively prohibit the use of email and communication systems for solicitations on behalf of "outside organizations," will likely come under assault in the near future. The Board's decision contained a scathing dissent, and once President Obama's nominations to the Board are seated, the Board likely will revisit this issue, perhaps affording employees the right to use company email systems for union solicitation, absent special circumstances. In any event, we can certainly expect the Board, armed with the D.C. Circuit's decision, to review email solicitation policies and their enforcement with heightened scrutiny.

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