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Discipline For Use Of Email May Constitute Unfair Labor Practice, D.C. Circuit Holds

Published by on November 23, 2009

In Guard Publishing Company v. NLRB, the U.S. Court of Appeals for the District of Columbia held that the employer engaged in unfair labor practices when it disciplined an employee for sending union-related e‑mail messages on the company’s e-mail system.  More after the break. Suzi Prozanski, a copy editor at the Register-Guard, a newspaper published […]

In Guard Publishing Company v. NLRB, the U.S. Court of Appeals for the District of Columbia held that the employer engaged in unfair labor practices when it disciplined an employee for sending union-related e‑mail messages on the company’s e-mail system.  More after the break.

Suzi Prozanski, a copy editor at the Register-Guard, a newspaper published by the Guard Publishing Company, was disciplined for sending union-related e-mails on the company’s computer system in violation of company policy.  The Register-Guard’s e-mail policy prohibited use of the company’s communications systems to “solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”  Despite this policy, Register-Guard employees often used the e-mail system for personal purposes—for example, to send birth announcements and party invitations—and were not disciplined.

In addition to being a copy editor, Prozanski was also president of the union that represented about 150 Register-Guard employees.  In May 2000, Prozanski sent an email on the company’s e-mail system to union employees to “set the record straight” regarding a company e‑mail warning employees to avoid a union rally that would supposedly attract anarchists.  Prozanski’s email suggested that the company’s e-mail was not entirely accurate.  Prozanski received a disciplinary warning the following day stating that she had violated the company’s e‑mail policy.  In August 2000, Prozanski sent company employees two more emails, one encouraging them to “wear green” to show support for the union’s position in contract negotiations, and another asking for volunteers for an upcoming union parade.  Prozanski received another disciplinary warning following the two emails.  In September, the union filed a charge with the National Labor Relations Board (“NLRB”) alleging unfair labor practices.

The NLRB asserted that the company had violated the National Labor Relations Act (“NLRA”) by “maintaining, promulgating, and enforcing an overly broad no-solicitation policy” and by “discriminatorily enforcing” the policy.  The Administrative Law Judge (“ALJ”) found that the company had not violated the NLRA by maintaining its no-solicitation e-mail policy, but that it had violated the Act with respect to disciplining Prozanski for both the May and August e‑mails.  The ALJ determined that Register-Guard had applied its no-solicitation policy in a discriminatory manner by prohibiting union-related e-mails while allowing other non-work related e-mails.  On review, the NLRB agreed with the ALJ’s determination that the company had engaged in an unfair labor practice by disciplining Prozanski with respect to the May e-mail, but that the August e-mails did constitute solicitations because although the company permitted personal e-mails, there was no evidence that the company allowed employees to solicit other employees “to support any group or organization.” 

On appeal to the D.C. Circuit, the union argued that the company applied its e-mail policy in a discriminatory manner with respect to both the May and August e-mails.  The court began by stating that “a valid no-solicitation rule applied in a discriminatory manner or maintained for discriminatory reasons may not be enforced against union solicitation.”  The court found that there was substantial evidence to support the determination that the company’s discipline of Prozanski with respect to the May e-mail was discriminatory.  The court stated that the company’s no-solicitation policy did not cover the May e-mail because the e-mail was not a “call for action;” rather, it was simply an attempt to clear up the facts surrounding an earlier communication.  Further, the court found the fact that the company permitted other non-work related e-mails was evidence that the company was discriminating against union-related content.

With respect to the August e-mails, the court found that the NLRB’s determination was not supported by substantial evidence.  The court agreed that the e-mails constituted solicitation, as they “called for employees to take action in support of the Union,” but the evidence showed that the company permitted personal e-mail solicitations for things such as sports tickets and similar items.  The court noted that the company’s policy did not distinguish between such individual solicitations and solicitations for groups and “outside organizations.”  The court also found significant that the only employee e-mails that had ever led to disciplinary action by the company were the union-related e-mails at issue.

Contributed by Claudia L. Guzman

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