D.C. Circuit Court of Appeals Finds That Guard Publishing Company Discriminated Against Employee’s Use of Company Email for Union Activity
The D.C. Circuit Court of Appeals recently reviewed a decision by the National Labor Relations Board (“Board”) involving the use of company communication systems for union-related solicitations. On July 7, 2009, a three judge panel of the court held that Guard Publishing Company discriminated against union activity in violation of the National Labor Relations Act (NLRA). It did so when it enforced its Communication Systems Policy (CSP) by warning an employee for sending three (3) union-related emails through the company’s email system despite having allowed numerous non-union, non-work related emails to be sent without discipline.
Under the CSP that prohibited non-work related solicitations, Guard Publishing had issued two warnings. The first was in response to an employee’s email attempting to clarify misinformation surrounding a union-related rally. The second was in response to two other emails sent by the same employee. One email reminded fellow employees to wear green to show solidarity for the union in contract negotiations. The second requested volunteers to help with the union’s entry in an upcoming parade. Both warnings explicitly mentioned the employee’s use of email for union business and both warnings reminded the employee of the company’s prohibition against use of the email system for non-work related business.
The D.C. Circuit’s ruling partially reversed an earlier decision by the Board in which it had decided that the first warning was discriminatory but the second was not. Before making this ruling, however, the Board upheld the company’s CSP as non-discriminatory under the NLRA. That said, the Board held that the warning given for the first email was a discriminatory application of the policy. It found that the email itself was not a solicitation and therefore the employee did not violate the company’s policy. However, the Board held differently in regard to the second warning. It interpreted the company’s policy as prohibiting non-job related organizational solicitations. Under that interpretation, the second warning was valid and not a discriminatory application of the policy.
In its partial reversal, the D.C. Circuit first noted that it was not considering the validity of the CSP under the NLRA because the union had not challenged it. It went on to agree with the Board that the warning sent for the first email was a discriminatory application of the policy. However, it disagreed with the Board’s evaluation of the second warning.
In holding the second warning to be discriminatory, the D.C. Circuit disagreed with the Board’s interpretation of the policy. It noted that the policy broadly prohibited all “non-job-related solicitations.” The policy only listed “organizations” as limited examples of the types of solicitations prohibited. Although personal solicitations were not mentioned in the policy, the language of the policy was broad enough to cover such solicitations. Further, the actual warnings sent by the company employed the same broad prohibitory language while also specifically noting the union-related nature of the emails being disciplined. Since the company had let numerous other solicitations go undisciplined, the court held there was substantial evidence to support its finding that the company discriminated against union activity when it sent its warning.