The D.C. Circuit Reminds Employers of the Perils of Selectively Enforcing Their Solicitation and E-Mail Policies Against Union-Related Activities


On July 7, 2009, in the ongoing saga involving the ability of employees to use their employer's e-mail systems for union-related activities, the D.C. Circuit Court of Appeals reversed a portion of the National Labor Relations Board's (NLRB) landmark decision in Register-Guard1 and concluded that the newspaper unlawfully discriminated against an employee for sending three e-mails to coworkers that discussed union matters. In Guard Publishing Co., d/b/a The Register-Guard v. N.L.R.B., No. 07-1528 (D.C. Cir. July 7, 2009), the D.C. Circuit agreed with the NLRB's conclusion that an employee cannot be disciplined for merely "communicating" about an organization or a union if the policy only prohibits "soliciting" on behalf of organizations. However, the court squarely rejected the NLRB's finding that the newspaper did not discriminate against the same employee for sending two e-mails that clearly constituted "solicitations" under the newspaper's policy, reasoning that the employer's history of enforcing the policy demonstrated that the discipline was discriminatory.

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