July 10, 2009Client Alert

Time To Review Your Non-Solicitation Policy: Company E-Mail Systems Now More Vulnerable To Union Organizing Activity

Companies will now have a harder time controlling union solicitations sent through the company’s e-mail system by employees. This week, the Court of Appeals for the District of Columbia issued a decision that requires companies either to allow or to ban all e-mail solicitations equally. This means a company must discipline all employees who send soliciting e-mails, if it wants to discipline an employee who sends an e-mail soliciting union participation. In Guard Publishing Co. v. NLRB, No. 07-1528 (D.C. Cir. July 7, 2009), the Court held that an e-mail usage policy may not be enforced discriminatorily against union-related messages.

In May and August of 2000, the company, Guard Publishing, issued written disciplinary warnings to union president Suzi Prozanski, a copy editor, for violating the communication systems policy. In May, she sent from her workstation (but composed on her break) an e-mail entitled “setting it straight” concerning a recent union rally. The e-mail, correcting an earlier factual error, stated that the police department contacted the company to warn about “anarchists” at a union rally, not the other way around. In August, she sent two e-mails from company computers: one entitled “Go Green,” reminding employees to wear green to show unity regarding the union’s position in contract negotiations, and another entitled “Let’s parade,” asking for volunteers to help with the union’s city parade entry.

The company issued Prozanski written warnings for each incident for allegedly violating the company’s communication systems policy. The company’s policy stated: “Communication 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.” However, as in many companies, employees sent and received e-mail regarding parties, community events, sporting events, meetings for lunch, and poker games, and were never reprimanded.

In response to the written warnings, the union filed an unfair labor practice charge. The union charged that the company’s policy was overbroad and that the company applied it discriminatorily against union activity, in violation of the National Labor Relations Act. The National Labor Relations Board found that the May warning was improper because the e-mail was not a solicitation, but ruled in favor of the company for the August written warnings. The August e-mails crossed the line into solicitation of employees on behalf of the union.

The D.C. Circuit Court reversed the Board’s decision, holding that the company violated the National Labor Relations Act when it issued all of the written warnings, not only the May warning. The Court did not address the lawfulness of the communications system policy, but concluded that the policy was applied in a “discriminatory manner.” The August e-mails did constitute solicitations, but the evidence showed that the company tolerated personal employee e-mail messages, including solicitations, and disciplined Prozanski only because her e-mails were union-related, noting that “in practice the only employee e-mails that had ever led to discipline were the union-related e-mails at issue here.” The Court rejected the company’s rationalization that the problem with Prozanski’s e-mails was not the union-subject matter, but the fact that she solicited for an organization, noting that the policy made no distinction between solicitations for groups or for individuals.

This decision highlights the need for employers to review and reconsider their policies with regard to the use of company e-mail for all types of solicitation communications, as well as their actual practices in enforcing those policies. Employers will need to review how their current policies and practices might aid union organizing and decide whether changes are needed. Employers should take extra care to enforce any such policies evenly and not discriminate against communications that are union-related.

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