February 2008
Author:
Hayes C. Stover
412.355.6476 hayes.stover@klgates.com
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In December, 2007, the National Labor Relations Board (“Board”) issued what is likely to be its last non-routine decision prior to the 2008 elections, as the terms of 3 of the 5 Board members expired at the end of 2007, and obtaining confirmation of new appointees or recess appointments in an election year will be difficult. Its 3-2 decision in Guard Publishing
Company, d/b/a Register Guard , 351 NLRB No. 70 will have broad implications. The
Board majority (1) concluded that an employer may properly forbid use of an employer email system for union solicitation so long as the prohibition does not discriminatorily single out such communication for prohibition, and (2) adopted a test for what constitutes unlawful discrimination that is narrower than the existing Board standard. It is likely that this latter action, if it survives appeals and a future revamped Board majority, will have the broadest impact.
Facts
Employer Guard Publishing Company operates a newspaper in which a large number of its employees are represented by a union. Guard installed an email system for business use by its employees. Guard issued a policy which provided:
Company communication systems and the equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communications 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 regularly used the system for both business and personal communication, but no evidence existed that the system was used for solicitation on behalf of any organization or cause except United Way, which was sponsored by Guard.
The union president on two occasions used the email system to communicate with other union members. On one occasion in May, she sent to union members from her desk what was deemed by the Board to be an information-sharing email about alleged misinformation concerning a union rally. On a second occasion in August, emails sent from union headquarters, but through Guard’s system, asked members to take various actions in support of the union’s position in collective bargaining. The president was disciplined for both the
May and August emails.
Finally, during collective bargaining negotiations, Guard made the following proposal:
The electronic communications systems are the property of the Employer and are provided for business use only. They may not be used for union business.
The restriction on the use of the email, the discipline, and the proposal were all alleged to be unfair labor practices.

Use of Email System
In a case of first impression, the Board majority rejected the proposition that the union had any protected right to make use of the employer’s email system for Section 7 purposes (Section 7 of the National Labor Relations
Act gives employees and unions the general right to engage in mutual, concerted activities). The majority concluded that the system was the employer’s property, and should be treated like company phone systems and bulletin boards, with respect to which employers have long been permitted to prohibit union use. The majority rejected the position of the dissenters that email should be treated differently from other company property because of its rapidity and interactive nature.
The majority also rejected the argument that the correct analysis was not whether the union had the right to use company property, but rather was a balancing of
Section 7 oral communication rights against the right of an employer to maintain discipline, as set forth in the United States Supreme Court’s 1945 decision in
Republic Aviation . The majority noted that Guard’s policy did not in any way prohibit employees from personal solicitation or distribution on non-working time and place, the heart of the Republic Aviation decision. Accordingly, Guard’s policy was found to be lawful.
Discriminatory Enforcement
As noted earlier, the more significant part of the decision may be its modification of the test for discriminatory enforcement of an otherwise lawful rule. It has long been Board law that many restrictions on employee activity are legal if they are applied equally to both
Section 7 activities that are protected by the National
Labor Relations Act and activities that are not. For example, an employer may prohibit employees from placing any non-business related items on company bulletin boards, but it may not allow all personal postings except Section 7 protected items.
The accepted view has always been that discrimination involves the unequal treatment of equals, but defining what is an equal has been a point of contention.
In changing its view on how to categorize what are equals, the majority relied on the narrow distinctions made by several Seventh Circuit decisions. The majority explained its new rule as follows:
Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.
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For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.
In either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature
(e.g., a car for sale) and solicitations for the commercial sale of a product (e.g.,
Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines. For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.
Applying the new test, the majority found that the
August discipline was lawful because the president was soliciting in violation of the rule which prohibited all solicitations, but that the May discipline was not lawful because that communication was not solicitation and was similar to non-Section 7 uses that were permitted by Guard. In finding the August communications unprotected, the Board did not discuss the fact that those emails were sent from a non-Guard terminal.
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The Bargaining Proposal
The Board majority did not decide what may have been the most difficult issue. The dissenters as well as the Administrative Law Judge concluded that the bargaining proposal to forbid any use of the email system by the union constituted an unfair labor practice.
If such a broad restriction would have been illegal, then insisting upon including it in a new contract would also be illegal. The majority avoided that issue by concluding that although Guard had proposed the ban, there was no evidence that Guard would have insisted on it as a condition of reaching a new agreement.
Simply proposing a possibly unlawful provision is not itself an unfair labor practice.
Conclusion
The Guard decision is a clear victory for employers.
But the breadth of that victory will not be determined until the decision, if not reversed, is applied in various circumstances. Clearly employers can prohibit some union use of their email systems, but can they prohibit all union use? In Guard only
“solicitations” were prohibited, not all uses and hence the August “solicitation” was not protected but the
May “communications” were protected. An employer can presumably prohibit all non-business uses of its email system. But if it permits any non-business, non-Section 7 use, it may not be able to prohibit all
Section 7 use. Possibly fine lines of what Section 7 and non-Section communications are “equal” will have to be drawn. Finally, may an employer insist in collective bargaining that all Section 7 use of the email system is prohibited? Whatever the answers to those questions are, one conclusion is clear. Every employer that has rules dealing with use of company communication systems, or that has a rule addressing solicitations or distributions, should carefully review these rules in light of the new Guard standard.
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