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July 17, 2009 |
Schiff Hardin Labor and Employment Alert By Nora Kersten Walsh and Henry W. Sledz Jr. We issued an alert last year about the National Labor Relations Board's (the "Board") Guard Publishing Company d/b/a Register-Guard decision, which held that a company's general policy against using company e-mail for non-work-related solicitations can properly prohibit union solicitations, as long as the employer's policy does not discriminate against union activity. A controversial aspect of that decision was the Board's determination that Register-Guard had not enforced its non-solicitation policy in a discriminatory manner — Register-Guard knew that its employees used the e-mail system to send and receive personal messages such as baby announcements, party invitations, offers for sports tickets and the like, but nevertheless disciplined an employee for sending e-mails asking employees to "wear green" and to support the union at a town parade. Following Seventh Circuit precedent, the Board drew the distinction between "personal" solicitations (such as party invitations) and solicitations for outside groups or organizations (such as Avon, the United Way, a union, etc.), and held that since there was no evidence that Register-Guard had allowed employees to use its e-mail to solicit on behalf of an outside group or organization in the past, its enforcement in this instance did not demonstrate anti-union bias and therefore did not violate Section 8(a)(1) of the National Labor Relations Act. (Please see the Schiff Hardin February 1, 2008 alert for a more complete discussion of the Board's decision and its definition of "discrimination" in this context.) In a decision issued last week, the United States Court of Appeals for the District of Columbia Circuit reversed the portion of the Board's decision pertaining to the two e-mails. Declining to address the propriety of drawing a distinction between "individual" and "organizational" solicitations in general, the court found that the distinction was a "post-hoc invention" that the company had never invoked in the past — including at the time it disciplined the employee for sending the e-mails. It also noted that while the policy itself mentioned solicitations for "outside organizations" as one example of prohibited "non-job-related solicitation," the policy did not distinguish between solicitations for groups and for individuals. Because neither the language of the policy nor the company's past enforcement of the policy relied on an organizational justification, the court held that its reliance in this instance resulted in unlawful discrimination against the union. It then remanded to the Board for further proceedings consistent with the opinion. The union did not appeal, and thus the D.C. Circuit did not address, the Board's holding that an employer can lawfully prohibit use of its e-mail system for union activity so long as it applies its policy in a non-discriminatory manner. But the D.C. Circuit's decision re-opens the question of whether and how employers can draw distinctions in their application of such policies, and leaves it to the Board to clarify. What is clear now is that employers who allow any kind of solicitation communications via their e-mail systems — personal or otherwise — are at greater risk of exposing themselves and their workforce to union organizing or other union activity. We will continue to watch this case, and will keep you apprised of developments on this and related topics. For more information, please contact any attorney in Schiff Hardin's Labor and Employment group. RECENT LABOR AND EMPLOYMENT PUBLICATIONS
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