In Guard Publishing Company v. NLRB, the United States Court of Appeals for District of Columbia reversed certain aspects of the National Labor Relations Board's holding last year that had sanctioned disciplining employees for using company email to solicit in behalf of a union.

The Facts

Guard Publishing Company publishes The Register-Guard, a newspaper in Eugene, Oregon. Employees working in the newsroom and related departments are represented by a Newspaper Guild affiliate of the Communication Workers of America (the "Union"). Virtually all of those employees use the company's email system. When it installed the email system, the employer implemented a "communications systems policy," which stated:

Notably, the policy did not prohibit all non-job-related uses, and employees had for years used the system to communicate with each other about personal matters such as baby announcements, jokes, party invitations, offering sports tickets, organizing poker games and to make lunch plans. However, there was no evidence that employees had used the system to solicit other employees for commercial ventures, religious causes or any outside organization.

During protracted collective bargaining, the union's president, a bargaining-unit employee, used the email system on three occasions: (1) to inform employees about an inaccuracy in a prior union communication concerning a union rally that had taken place the prior week (the "May 4 email"); (2) to solicit employees to "wear green" in support of the union's bargaining demands (the "August 14 email"); and (3) to solicit employees to march with the union in a local parade to show further solidarity (the "August 18 email"). The May 4 email was sent from the company-owned computer that the employee used at work. The August emails were sent from the union's offices, but were addressed to other employees at their Register-Guard email addresses. The employer disciplined the union president for each of her three emails, although no solicitation was involved in the first of the three emails.

The Board's Holding

In December 2007, the Board ruled 3-2 that: (1) the employer's communications systems policy was facially lawful, analogizing company-owned email systems to company-owned bulletin boards, and concluding that employers have the right to limit access to either; (2) the employer had lawfully applied its policy when it disciplined the Union's president for sending emails soliciting support for the union's bargaining positions, distinguishing the other non-job-related solicitations that the employer had tolerated from the fact that there was no evidence that the employer had ever countenanced solicitations for outside organizations of any kind; and (3) the employer had unlawfully applied its policy when it disciplined the Union's president for sending purely informative emails that did not solicit for anything.

The DC Circuit's Holding

The union petitioned the DC Circuit for review. The union did not seek review of the Board's determination the employer's policy was facially lawful. For purposes of this case, the Union essentially conceded that the employees at Guard Publishing had no more right to use the employer's email system than they would have had a right to use the employer's bulletin boards. However, the Union did argue that the employer enforced its policy in a manner that impermissibly discriminated against union activity.

The DC Circuit stated that an otherwise valid no-solicitation rule applied in a discriminatory manner or maintained for discriminatory reasons may not be enforced against union solicitation. Applying this rule, the court determined that the employer's application of its communications systems policy against all three emails was unlawful.

The May 4 email: The DC Circuit affirmed the Board's ruling that the employer's decision to discipline the union president for the May 4 email was unlawfully discriminatory. Because the May 4 email did not "solicit or proselytize," the court wrote, it was not prohibited by the express terms of the employer's written policy. The court looked to the dictionary definition of solicit ("to try to obtain by entreaty, persuasion, or formal application"), and proselytize ("to convert from one faith or belief to another") in determining that the union president's email did neither.

The August emails: The DC Circuit reversed the Board regarding the August emails. The court found that the employer had discriminatorily applied its policy. The court agreed with the Board and the employer that the August emails did contain solicitations, asking employees to take action in support of the union. However, the fact that the employer permitted other kinds of personal solicitations, including those for sports tickets or other personal items, weighed in favor of a discrimination finding. The court rejected the Board's distinction between individual solicitations (which the employer permitted) and solicitations on behalf of an organization (which the employer claimed it did not permit) as a after-the-fact invention by the employer. The court pointed out, the employer's policy prohibited all "non-job-related solicitations," not just those on behalf of an organization. Further, the employer's disciplinary warning did not mention the distinction and, instead, simply ordered the union president to refrain from using the employer's systems for "union/personal business."

Notes for the Employer

The most critical aspect of the Board's decision – that an employer may adopt neutral, non-discriminatory limitations on the right of employees to use its computer and email systems was not disturbed by this holding. However, this decision illustrates how an employer's failure to uniformly enforce a broadly written email policy may come back to haunt the employer when it seeks to enforce the policy against solicitations related to activity protected under Section 7 of the NLRA.

Furthermore, it remains to be seen whether a newly-constituted Obama Board will hold fast to the underlying, critical premise of these decisions: that an employer may limit access to its computer and email systems so long as it does so in a non-discriminatory manner. Inauspiciously for employers, the new Chairman of the Board, Wilma Liebman, dissented in the Board's 2007 Guard Publishing decision, stating: