On July 26, 2011, in Register Guard, 357 NLRB No. 27 (July 26, 2011), the NLRB issued a decision on remand from the U.S. Court of Appeals for the D.C. Circuit involving a challenge to an employer’s e-mail use and solicitation policy, and its enforcement of the same.  Neither the new Board decision, nor the appellate court opinion changes the precedent set by the original Register Guard decision in December 2007.  In that decision, the NLRB modified then-existing precedent concerning discriminatory enforcement of company rules and policies, announcing a narrower standard for discrimination with respect to rules governing activities or communications.  In so doing, the Board upheld the facial validity of an employer’s policy that prohibited the use of e-mail for “non-job-related solicitations,” acknowledging that an employer could make distinctions in its rules that might adversely affect employees’ NLRA Section 7 rights (such as allowing charitable, but not non-charitable e-mail solicitations), so long as such policies (or enforcement of those policies) did not discriminate along Section 7 or union-related lines.

The initial case involved a challenge to two disciplinary actions the employer took toward an employee under its e-mail use policy.  The D.C. Circuit reversed the Board’s initial ruling, holding that both instances of discipline violated the Act.  The D.C. Circuit noted that, while the employer argued the employee was disciplined for making solicitations on behalf of an organization, rather than on behalf of an individual, there was no basis in the employer’s policy for such a distinction, thus leading to the inference that the enforcement was based on the union-related nature of the communication.  The court observed that neither the company’s written policy nor its explanation in the warning drew a distinction between individual and organizational solicitations, finding that the employer’s rationale was “a post hoc invention” raised only after the General Counsel filed the complaint.  On remand, the NLRB accepted the D.C. Circuit’s ruling in this regard as “law of the case.”

No Impact on Register Guard’s “Discrimination” Standard:

In the initial Register Guard decision, the Board, following a standard announced by the Seventh Circuit Court of Appeals, ruled that “unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.”  Under the modified standard, discrimination must be along Section 7 lines to be unlawful. For example, an employer would violate Section 8(a)(1) by permitting employees to send antiunion emails while prohibiting prounion emails; but it would not be unlawful discrimination to permit emailed solicitations for charitable organizations but not emailed solicitations for other kinds of organizations. The fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines. By contrast, it would be discriminatory to enforce a rule governing the use of an employer’s equipment that allows employees to use that equipment for nonwork-related purposes while prohibiting use for  Section 7 or union-related purposes.

Notably, the NLRB did not revisit the controversial “discrimination standard” it announced in the 2007 Register Guard decision, noting, “no party asks us to revisit this issue here.”  Chairman Liebman adhered to her dissent on that point, but noted that whether under the “old” or “new” discrimination standard, the employer had violated the Act in its enforcement of its e-mail policy.  As it stands, the Register Guard “discrimination” standard remains the law, although there is at least one NLRB decision, Roundy’s Inc., in which the Board may be poised to revisit the issue.