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Inconsistent Application of Computer Use Policy Results in Unfair Labor Practices
July 14, 2009
The United States Court of Appeals for the District of Columbia Circuit has held that a company’s discriminatory enforcement of its computer use policy constituted an unfair labor practice in violation of the National Labor Relations Act (NLRA).
In a decision released last week, the United States Court of Appeals for the District of Columbia Circuit has held that a company’s discriminatory enforcement of its computer use policy constituted an unfair labor practice in violation of the National Labor Relations Act (NLRA). The Court found that the company routinely permitted all manner of non-work-related communications on its computer systems yet disciplined an employee for sending union-related emails. Guard Pub. Co. d/b/a Register-Guard v. National Labor Relations Board, 2009 U.S. App. LEXIS 14952 (D.C. Cir. July 7, 2009).
Facts
The Register-Guard, a daily newspaper in Eugene, Oregon, adopted a Communication Systems Policy (CSP) to govern employee use of the newspaper’s computer systems. The CSP was similar to policies adopted by many employers. The policy stated:
Company communication systems and the equipment used to operate the communication systems are owned and provided by the Company to assist in conducting the business of The Register-Guard. 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.
Although the CSP stated that Company communication systems were for business use, employees regularly sent and received emails containing baby announcements, party invitations, and jokes and information about community events, sporting events, and even poker games.
A number of the Company’s employees were represented by the Eugene Newspaper Guild, CWA Local 37194, AFL-CIO (the “Union”). In May and August of 2000, Union President Suzi Prozanski, who was employed as a copy editor at the Register-Guard, sent three union-related emails to her coworkers. The email in May was intended to set the record straight about a previous Union communication that had been unfairly critical of the Company. Specifically, the previous Union communication had accused the Company of telling the police that “anarchists” would be at a Union rally when, in fact, it was the police who had expressed concern to the Company. Ms. Prozanski’s two emails in August encouraged employees to “WEAR GREEN on Tuesday” to “show unity” in the Union’s contract negotiations with the Company and to volunteer to help with the Union’s entry in a local parade.
The Company issued disciplinary warnings to Ms. Prozanski for violating the Communication Systems Policy. Ms. Prozanski was admonished that she had violated the CSP by using the Company’s email system for the purpose of conducting Union business and to disseminate Union information.
A couple of months later, an additional point of contention arose between the Union and the Company. Union member Ronald Kangail worked as a district manager and dealt with the independent contractors who served as newspaper carriers for the Company. Kangail began to wear a green arm band, indicative of Union support, and also displayed an 8½ x 11 inch green placard on his car promoting support for the Union. The Company told Kangail to stop these practices, claiming that there was a “unwritten policy” that employees could not wear or exhibit items that were controversial in nature, partisan or political, or that otherwise presented the Company in a negative context.
NLRB Complaint
The Union filed charges with the National Labor Relations Board (NLRB) accusing the Company of unfair labor practices in its actions toward Prozanski and Kangail. The Union claimed that the Company’s Communication Systems Policy amounted to an overly broad no-solicitation policy that violated the NLRA. The Union specifically contended that the Company had discriminatorily enforced the CSP against Prozanski and had also violated the NLRA by prohibiting Kangail from displaying any Union insignia or signs.
The NLRB found nothing wrong with the Company’s CSP. Referring to a long line of cases governing employee use of employer-owned equipment, the NLRB stated that union members have no statutory right to use a company’s email system for union business. Therefore, a company may lawfully prohibit employees’ non-work-related use of its email system, unless the company acts in a manner that discriminates against union activity.
The NLRB concluded, however, that the Company had violated the NLRA by discriminatorily enforcing the CSP to prohibit union-related emails while allowing a variety of non-work-related emails. The NLRB further held that the Company had violated the NLRA by maintaining an overly broad rule prohibiting employees from wearing or displaying union insignia while working with the public.
The NLRB’s decision was appealed to the United States Court of Appeals for the District of Columbia Circuit.
The Court’s Decision
In the proceedings before the Court of Appeals, the Union did not challenge the legality of the Company’s Communication Systems Policy which, on its face, prohibited the use of computer systems for any non-business purpose. The Union argued, instead, that the Company had selectively and illegally enforced the email policy, and the Court agreed.
The Court concluded that the problem in this case was not with the CSP itself but with how the policy was applied. Although a company is free to enact and enforce valid no-solicitation rules – and to apply those rules to the company’s computer systems – the rules cannot be applied in a manner that discriminates against union organizational activity.
The Court found that Prozanski’s May 2000 email, which was sent to correct the Union’s unfair criticism of the Company, did not even violate the CSP because it was not a “solicitation.” Noting that other employees were allowed to send all manner of personal emails on the Company computer system, the Court concluded that Prozanski had been disciplined for violation of the CSP solely because her email was union related.
The Court likewise concluded that the Company’s disciplining of Prozanski for the August 2000 emails was discriminatory and therefore in violation of the NLRA. The August emails, which solicited support for the Union’s position in contract negotiations and for a Union function, clearly were “solicitations” and thus, on their face, violated the CSP. The problem, however, was that the Company regularly permitted other types of personal solicitations on its email system. The Company tolerated personal email messages that included solicitations for sports tickets and other personal items but had disciplined Prozanski for using the system for dissemination of Union information.
Finally, the Court held that the Company had committed an unfair labor practice by directing Kangail to stop wearing his union arm band and to stop displaying the union placard on his vehicle. The Court noted that the right to wear union insignia was generally protected by the NLRA and that, in the absence of “special circumstances,” an employer’s prohibition against wearing such insignia constitutes an unfair labor practice. Special circumstances may include such things as ensuring employee safety, protecting the employer’s products, or maintaining a particular employee image (especially with respect to uniformed employees). The Court found none of these special circumstances to be present in this case.
Commentary
Although the Register-Guard case involved a unionized employer, the Court’s holdings apply to non-unionized companies as well. Simply put, a company whose employees are not represented by a union may still commit an unfair labor practice if it enforces its policies in a discriminatory manner by prohibiting union-related communications and activities while permitting other types of non-work-related conduct.
The Register-Guard case illustrates the critical importance of consistent application of company policies – especially those which are drafted with union avoidance in mind. As the Court in Register-Guard made clear, employers are free to adopt no-solicitation policies and policies that restrict computer use to legitimate company business. The policies, however, cannot be selectively enforced against union-related activities. The Company’s critical error in Register-Guard was its decision to enforce its Communication Systems Policy against union-related communications without making any apparent effort to control the baby announcements, party invitations, jokes and offers of sports tickets that had become part of the office culture.
If you have any questions about this update, please do not hesitate to contact a member of our Labor & Employment Law Group.