Court Reverses NLRB’s Anti-Union Email Discrimination Test

July 12, 2009 by Beeson Tayer & Bodine

A federal Court of Appeals has reversed the NLRB on an important, anti-worker holding the Board issued in Register Guard, 351 NLRB No. 70 (2007). (See BTB Labor Law Bulletin, Jan. ’09, p. 2.) In doing so, the court re-affirmed that an employer may not discipline an employee for using email for union-related business while allowing employees to use their email for other personal business. Guard Publishing v. NLRB (D.C. Cir. 2009). In Register-Guard, the Board ruled that an employer did not commit an unfair labor practice when it disciplined a union officer for using the employer’s email system to send “solicitations” to fellow employees regarding union matters, even though the company permitted solicitations for sports tickets or personal items. The Board dismissed the significance of the personal solicitations, noting there was no evidence to demonstrate that the company allowed employees to use email to solicit on behalf of groups or organizations. The Board’s holding had the potential to create an entirely new test for proving “discrimination” under the NLRA.

On appeal, the court reversed the Board, criticizing the Board for its failure to see discrimination in the company’s enforcement of its email solicitation rules. For the court, there was no valid distinction to be drawn between solicitations on behalf of a group, or solicitations on behalf of an individual. The court concluded that because the company allowed employees to use their email to solicit items such as tickets or dog-walking services, the company could not disciple employees for making email solicitations for union business.

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