Guard Publishing Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2008 Decided July 7, 2009

No. 07-1528

GUARD PUBLISHING COMPANY, DOING BUSINESS AS THE

REGISTER-GUARD,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

EUGENE NEWSPAPER GUILD, CWA LOCAL 37194, AFL-CIO,

INTERVENOR

Consolidated with 08-1006, 08-1013

On Petitions for Review and

Cross-Application for Enforcement

of an Order of the National Labor Relations Board

L. Michael Zinser argued the cause for petitioner Guard

Publishing Company. With him on the briefs was Glenn E.

Plosa.

James B. Coppess argued the cause for petitioner Eugene

2

Newspaper Guild, CWA Local 37194, AFL-CIO. With him on

the briefs were Barbara Camens and Laurence Gold.

Heather S. Beard, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

were Ronald Meisburg, General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel, and Meredith L. Jason, Supervisory Attorney.

L. Michael Zinser and Glenn E. Plosa were on the brief for

intervenor Guard Publishing Company in support of respondent.

James B. Coppess, Barbara Camens, and Laurence Gold

were on the brief for intervenor Eugene Newspaper Guild, CWA

Local 37194, AFL-CIO in support of respondent.

Andrew M. Kramer, Shay Dvoretzky, and Zachary S. Price

were on the brief for amici curiae Chamber of Commerce of the

United States of America, et al. in support of respondent.

Before: SENTELLE, Chief Judge, and GARLAND and

GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The Register-Guard disciplined

Suzi Prozanski, a copy editor and union president, for sending

three union-related e-mails to her fellow employees. It also

directed Ronald Kangail, a circulation department district

manager and union representative, not to wear a union armband

or display a union placard in public. The National Labor

Relations Board (NLRB) found that the company committed

unfair labor practices by enforcing its e-mail policy with respect

to one of Prozanski’s three e-mails in a manner that

discriminated against the union, and by prohibiting Kangail’s

3

display of union insignia. Because these findings were

supported by substantial evidence, we deny the company’s

petition for review and grant the Board’s cross-application for

enforcement. However, because the same cannot be said for the

Board’s determination that the company acted lawfully in

disciplining Prozanski for the other e-mails, we grant the union’s

petition for review and remand that matter for further

proceedings.

I

Guard Publishing Company publishes the Register-Guard,

a daily newspaper in the Eugene, Oregon area. In 1996, the

Register-Guard installed a new computer system and adopted a

Communication Systems Policy (CSP) to govern use of

communication systems, including e-mail. The CSP provided,

inter alia, that:

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.

J.A. 123.

While Register-Guard employees used “e-mail regularly for

work-related matters,” the Board found that:

Throughout the relevant time period, the [Register-

Guard] was aware that employees also used e-mail to

send and receive personal messages. The record

4

contains evidence of e-mails such as baby

announcements, party invitations, and the occasional

offer of sports tickets or request for services such as

dog walking.

Guard Publ’g Co., 351 N.L.R.B. 1110, 1111 (2007). Employees

“sent and received e-mail . . . regarding parties, jokes, breaks,

community events, sporting events, births, meeting for lunch,

and poker games,” and did so “without reprimand.” Id. at 1134

(ALJ Op.). Managing editor Dave Baker “admitted that he has

received personal e-mail from . . . employees and has not

disciplined them.” Id. Among other nonwork-related e-mails,

Baker himself sent at least two e-mails seeking volunteers for

the newspaper’s annual United Way campaign.

Approximately 150 of the company’s employees constitute

a unit represented by the Eugene Newspaper Guild, CWA Local

37194, AFL-CIO. In May and August of 2000, the company

sent union president Suzi Prozanski, a copy editor in the

newspaper’s features department, written disciplinary warnings

for alleged violations of the CSP. The warnings pertained to one

e-mail Prozanski sent in May from her workstation (but

composed on her break), and two e-mails she sent in August

from a computer at the union’s office. Prozanski sent all three

to numerous unit employees at their Register-Guard e-mail

addresses.

The first e-mail, sent May 4, 2000, was entitled “setting it

straight” and concerned a union rally held the previous Monday

afternoon, May 1. Before that rally, managing editor Baker had

e-mailed employees advising them to leave work early because

of a police warning that anarchists might attend the rally. Bill

Bishop, an employee and union member, then e-mailed a reply

to Baker and to other employees, attaching an e-mail from the

police to the union indicating that it was the company that had

5

warned the police about anarchists. The ensuing rally was

incident-free. Prozanski’s May 4 e-mail advised employees that

the union had “discovered that some of the information given to

you” in Bishop’s e-mail “was incomplete.” J.A. 129. Although

the police e-mail that Bishop had attached “clearly stated the

company had called the police,” she explained that:

What we didn’t know then is that police had in fact

contacted the [Register-Guard] on Sunday, the day

before the rally. . . . We regret that many were misled.

The internal police e-mail told only half the story --

that the company did contact the police on Monday.

But we didn’t have all the information about the police

contacting the company a day earlier.

Id.

The next day, Baker sent Prozanski a disciplinary warning.

It stated: “[Y]ou used the company’s e-mail system expressly

for the purpose of conducting Guild business. As you know, this

is a violation of the company’s Communication Systems

policy.” Id. at 130. The notice went on to express concern that

the e-mail had been posted on the union bulletin board.

“Employees who see that e-mail message are likely to assume

that it’s OK to use the company’s e-mail for purposes other than

company business. And, of course, that’s not true.” Id.

In August 2000, Prozanski sent employees two more

e-mails. The first, sent August 14 and entitled “Go Green,”

reminded employees to “WEAR GREEN on Tuesday” to “show

unity” regarding the union’s position in contract negotiations.

Id. at 127. The second, sent August 18 and entitled “Let’s

parade,” asked for volunteers to help with the union’s “fun,

entertaining, PRIZE-winning entry in the Eugene Celebration

Parade.” Id. at 128.

6

On August 22, Cynthia Walden, the Register-Guard’s

director of human relations, sent Prozanski another disciplinary

warning, stating that Prozanski had violated the Communication

Systems Policy by using the system “for dissemination of union

information.” Id. at 132. And it reminded her that “[i]n May

you . . . told Dave Baker that you would refrain from using the

Company’s systems for union/personal business.” Id. On

September 5, the union filed a charge with the NLRB alleging

that the Company committed an unfair labor practice by sending

the August 22 disciplinary warning.

Two months later, an additional point of contention arose

between the union and the Register-Guard, this time involving

Ronald Kangail. Kangail, a district manager in the circulation

department, interacted with independent contractors who served

as newspaper carriers and on occasion with subscribers. In

November, Kangail began to wear a green armband, indicative

of union support, when he was in the field. He also displayed in

his car an 8-1/2 by 11-inch green placard promoting support for

the union. Id. at 137. Zone Manager Steve Hunt, Kangail’s

supervisor, told Kangail to remove the armband from his arm

and the placard from his car when in public. Kangail complied.

Although the Register-Guard had no written policy concerning

the display of insignia or signs at work, company officials later

testified that there was an unwritten policy applicable when

dealing with the public. The officials’ descriptions of the

content of that policy differed. One manager said the policy was

that “employees could not wear or exhibit indicia that are

controversial in nature, or partisan or political, or . . . otherwise

represent the company in a negative context.” Guard, 351

N.L.R.B. at 1134 (ALJ Op.). Another said the rule was that

employees were “not to wear anything that is not appropriate to

the business.” Id. On May 14, 2001, the union filed an

additional unfair labor practice charge based on Hunt’s direction

that Kangail not display the armband and placard.

7

Based on the charges filed by the union, the NLRB’s

General Counsel filed complaints alleging, inter alia, that the

Register-Guard violated sections 8(a)(1) and (3) of the National

Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) & (3),1 by:

(1) “maintaining, promulgating, and enforcing an overly broad

no-solicitation policy”; (2) “discriminatorily enforcing its no-

solicitation policy” by issuing disciplinary warnings to Suzi

Prozanski on May 5 and August 22, 2000; and (3)

“promulgating and maintaining an insignia policy prohibiting

display of union insignia or signs.” Guard, 351 N.L.R.B. at

1133 (ALJ Op.). An Administrative Law Judge (ALJ) found

that the Register-Guard did not violate the NLRA merely by

maintaining the Communication Systems Policy, holding that an

employer may lawfully limit employee use of the employer’s

equipment or media. But the ALJ found that the Register-Guard

did violate the NLRA by discriminatorily enforcing the policy

to prohibit union-related e-mails while allowing a variety of

nonwork-related e-mails. In particular, he found that the

Register-Guard committed unfair labor practices by disciplining

Prozanski for both the May and August e-mails. And he further

found that the company violated the NLRA by maintaining and

1

Sections 8(a)(1) and (3) provide:

It shall be an unfair labor practice for an employer --

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section [7] of

this title;

...

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment

to encourage or discourage membership in any labor

organization . . . .

29 U.S.C. § 158(a)(1) & (3); see infra note 2 (setting forth the text of

section 7, 29 U.S.C. § 157).

8

enforcing against Kangail an overly broad rule prohibiting

employees from wearing or displaying union insignia while

working with the public.

On review, the Board agreed with the ALJ that the Register-

Guard did not violate the NLRA merely by maintaining a

Communication Systems Policy that barred employees from

using the company’s e-mail system for all nonjob-related

solicitations. “Consistent with a long line of cases governing

employee use of employer-owned equipment,” the Board held,

“the employees here had no statutory right to use the [Register-

Guard’s] e-mail system for Section 7 matters.” Id. at 1114.

“Accordingly,” it held, the Register-Guard “may lawfully bar

employees’ nonwork-related use of its e-mail system, unless [the

Register-Guard] acts in a manner that discriminates against

Section 7 activity.” Id. at 1116.2

As the CSP did not discriminate against section 7 activity

on its face, the Board proceeded to examine whether the

company violated section 8(a)(1) “by discriminatorily enforcing

the CSP to prohibit Prozanski’s union-related e-mails while

allowing other nonwork-related e-mails.” Id. The Board agreed

with the ALJ that the Register-Guard discriminatorily enforced

the CSP with respect to the May 4 e-mail. The CSP, the Board

noted, “prohibited only ‘nonjob-related solicitations,’ not all

non-job-related communications,” and the May 4 e-mail “was

not a solicitation.” Id. at 1119. “The only difference between

Prozanski’s May e-mail and the e-mails permitted by the

[Register-Guard] is that Prozanski’s e-mail was union-related.”

Id. The Board disagreed, however, with the ALJ’s finding

regarding the August e-mails. Those e-mails did constitute

2

Section 7 of the NLRA provides that “[e]mployees shall have the

right to self-organization, [and] to form, join, or assist labor

organizations . . . .” 29 U.S.C. § 157.

9

solicitations, the Board said, and although “[t]he evidence shows

that the [Register-Guard] tolerated personal employee e-mail

messages,” including solicitations for “sports tickets or other

similar personal items,” there was “no evidence that the

[Register-Guard] permitted employees to use e-mail to solicit

other employees to support any group or organization.” Id.

(emphasis added). “Thus, . . . enforcement of the CSP with

respect to the August 14 and 18 e-mails did not discriminate

along Section 7 lines and therefore did not violate Section

8(a)(1).” Id.3

Finally, the Board upheld the ALJ’s conclusion that the

Register-Guard “violated Sec. 8(a)(1) by maintaining an overly

broad rule prohibiting employees from wearing or displaying

union insignia while working with the public,” and by enforcing

that rule against Kangail. Id. at 1110 n.2.

Both the union and the company now petition for review.

The union states that, although it believes the company violated

section 8(a)(1) by maintaining a policy that prohibited e-mail

use for all “non-job-related solicitations,” it does not seek

review of the Board’s ruling to the contrary. See Union Br. 12-

13. Instead, the union contends only that the company enforced

its e-mail policy -- with respect to both the May and August

e-mails -- in a manner that discriminated against the union. For

its part, the company contends that the Board erred in finding

that it discriminated as to Prozanski’s May e-mail, but was

correct in finding no discrimination with respect to those she

3

Members Liebman and Walsh dissented in part. They would

have found that “banning all nonwork-related ‘solicitations’ is

presumptively unlawful absent special circumstances,” Guard, 351

N.L.R.B. at 1121, and that even if it were not, the Register-Guard

enforced the CSP in a discriminatory manner as to the August as well

as the May e-mails, id. at 1131.

10

sent in August. The company also challenges the Board’s

determination that it committed an unfair labor practice by

directing Kangail to cease displaying union insignia in public.

We assess the NLRB’s decision under familiar standards:

“We review the Board’s factual conclusions for substantial

evidence, defer to NLRB rules if they are rational and consistent

with the Act, and uphold the Board’s application of law to facts

unless arbitrary or otherwise erroneous.” Harter Tomato Prods.

Co. v. NLRB, 133 F.3d 934, 937 (D.C. Cir. 1998) (internal

quotation marks and citations omitted). We address the e-mail

issue in Part II and the insignia issue in Part III.

II

As noted above, for purposes of this case the union does not

challenge the lawfulness of a company policy that bars union

access to e-mail on a neutral basis. We therefore have no

occasion to consider that issue, and we move directly to the

question of whether the Register-Guard selectively enforced its

e-mail policy against the union. “The law is clear that a valid

no-solicitation rule applied in a discriminatory manner or

maintained for discriminatory reasons may not be enforced

against union solicitation.” Rest. Corp. of Am. v. NLRB, 827

F.2d 799, 804-05 (D.C. Cir. 1987); see ITT Indus., Inc. v. NLRB,

251 F.3d 995, 1006 (D.C. Cir. 2001).

1. With respect to the May e-mail, we conclude that

substantial evidence supports the determination that the

company’s decision to discipline Prozanski was unlawfully

discriminatory. Enforcement of the Communication Systems

Policy against Prozanski’s May missive could not constitute a

11

neutral application of that policy because, simply put, the CSP

did not cover such an e-mail.4

The Register-Guard’s policy provided that its

communication systems were not to be used “to solicit or

proselytize for commercial ventures, religious or political

causes, outside organizations, or other non-job-related

solicitations.” J.A. 123. Yet as the Board found, the May 4

e-mail “was not a solicitation. It did not call for action; it

simply clarified the facts surrounding the Union’s rally the day

before.” Guard, 351 N.L.R.B. at 1119. The dictionary defines

to “solicit” as “[t]o try to obtain by entreaty, persuasion, or

4

The Register-Guard objects that the union did not file a timely

charge based on the discipline for the May e-mail, and that a

complaint based on that discipline was therefore barred by section

10(b) of the NLRA, 29 U.S.C. § 160(b). But the NLRB has long

permitted prosecution of any alleged violation that is “‘closely related’

to the allegations in a timely filed charge,” Ross Stores, Inc. v. NLRB,

235 F.3d 669, 672 (D.C. Cir. 2001); see Nickles Bakery of Ind., Inc.,

296 N.L.R.B. 927, 928 (1989), and the ALJ found that the May

allegation was “closely related” to the August allegation, which was

timely charged, Guard, 351 N.L.R.B. at 1133 n.1 (ALJ Op.).

Although the company has continued to object -- before both the

Board and this court -- to the absence of a timely filed charge for the

May allegation, it has never objected to the ALJ’s finding that the May

allegation may be prosecuted notwithstanding the absence of a timely

filed charge because it comes within the “closely related” exception.

Because the company did not object to the ALJ’s finding before the

Board, see Resp’t’s Exceptions to the Decision of the Administrative

Law Judge ¶¶ 44-45 (S.A. 185), we are without jurisdiction to

consider that objection now. See 29 U.S.C. § 160(e). Moreover,

because the company also failed to raise that objection in its briefs

before this court, see Oral Arg. Recording at 3:58-4:15, 41:20-41:30

(company’s concession that it did not do so), it has twice waived any

argument it might have had. See Ark Las Vegas Rest. Corp. v. NLRB,

334 F.3d 99, 108 n.4 (D.C. Cir. 2003).

12

formal application,” WEBSTER’S II NEW COLLEGE DICTIONARY

1050 (1999), and to “proselytize” as to try “[t]o convert from

one faith or belief to another,” id. at 888. Stretching these terms

to cover what was nothing more than an attempt to correct a

factual error in an earlier e-mail is simply more distortion than

the words can bear.

The Board further found that the Register-Guard “permitted

a variety of nonwork-related e-mails other than solicitations.

Indeed, the CSP itself prohibited only ‘nonjob-related

solicitations,’ not all non-job-related communications. The only

difference between Prozanski’s May e-mail and the e-mails

permitted by the [Register-Guard] is that Prozanski’s e-mail was

union-related.” Guard, 351 N.L.R.B. at 1119. Accordingly, the

Board concluded that “the [Register-Guard’s] enforcement of

the CSP with respect to the May 4 e-mail discriminated along

Section 7 lines and therefore violated Section 8(a)(1).” Id. That

conclusion was certainly reasonable. In fact, in disciplining

Prozanski for sending the May e-mail, the company did not even

contend that the e-mail constituted solicitation or

proselytization. Rather, Baker’s May 5 disciplinary notice

admonished her for “us[ing] the company’s e-mail system

expressly for the purpose of conducting Guild business.” Id. at

1120 (quoting the May 5 memorandum, reproduced at J.A. 130).

As the Board noted, it thus was “clear from the warning itself

that the [Register-Guard] disciplined Prozanski for sending a

union-related e-mail.” Id.

2. We further conclude that substantial evidence does not

support the Board’s determination that the Register-Guard acted

lawfully in disciplining Prozanski for the August e-mails. We

agree with the Board that those e-mails did constitute

solicitations, as they “called for employees to take action in

support of the Union.” Id. at 1119. But the Board did not find

that the company disciplined Prozanski merely because the

13

e-mails were solicitations, as such discipline would have been

inconsistent with the Register-Guard’s practice of permitting

other kinds of personal solicitations. As the Board noted, “[t]he

evidence shows that the [Register-Guard] tolerated personal

employee e-mail messages,” including solicitations for “sports

tickets or other similar personal items.” Id. Rather, the Board

found that it was not discriminatory to discipline Prozanski for

the August e-mails because they were solicitations on behalf of

an organization rather than an individual, and there was “no

evidence that the [Register-Guard] permitted employees to use

e-mail to solicit other employees to support any group or

organization.” Id. (emphasis added).

Whatever the propriety of drawing a line barring access

based on organizational status, the problem with relying on that

rationale here is that it is a post hoc invention; the company

never invoked it before the General Counsel filed his complaint.

The Communication Systems Policy made no distinction

between solicitations for groups and for individuals, mentioning

solicitations for “outside organizations” as just one example of

the forbidden category of all “non-job-related solicitations.”

J.A. 123. Indeed, the Board’s own description of the CSP

acknowledged as much. Guard, 351 N.L.R.B. at 1110 (stating

that the company “maintain[ed] a policy prohibiting the use of

e-mail for all ‘non-job-related solicitations’” (emphasis added));

see Rest. Corp., 827 F.2d at 807 n.4 (noting that a company, by

imposing an absolute bar on solicitations, “itself determine[s]

what types of solicitation” it deems unacceptable). Equally

significant, the Company’s August disciplinary warning, which

explained the rationale for disciplining Prozanski, did not invoke

the organization-versus-individual line drawn by the Board. To

the contrary, it told her to “refrain from using the Company’s

systems for union/personal business,” J.A. 132 (emphasis

added) -- the reference to “personal” making it clear that the

offense did not depend on whether an organization was

14

involved. In the same vein, the May disciplinary notice did not

draw an organizational line either, but rather admonished

Prozanski that it was impermissible “to use the company’s

e-mail for purposes other than company business.” Id. at 130

In short, neither the company’s written policy nor its

express enforcement rationales relied on an organizational

justification. The August memo gave only one explanation for

disciplining Prozanski: she had “use[d] the system for

dissemination of union information.” Id. at 132. Thus, the

Board’s observation concerning the May disciplinary warning --

that it was “clear from the warning itself that the [Register-

Guard] disciplined Prozanski for sending a union-related

e-mail,” Guard, 351 N.L.R.B. at 1120 -- was equally true of the

August warning. Indeed, in practice the only employee e-mails

that had ever led to discipline were the union-related e-mails at

issue here. See Guard, 351 N.L.R.B. at 1137 (ALJ Op.)

(“[T]here was no enforcement of the communications policy on

nonbusiness use, other than union use, of communications

equipment.”); J.A. 52 (testimony of Dave Baker); id. at 167

(memorandum from Cynthia Walden to Bill Bishop). On this

record, substantial evidence does not support the Board’s

determination that Prozanski was disciplined for a reason other

than that she sent a union-related e-mail. See St. Margaret

Mercy Healthcare Ctrs. v. NLRB, 519 F.3d 373, 375-76 (7th Cir.

2008) (“The hospital’s rule forbids solicitations in patient care

areas, period, yet the only solicitations that have ever drawn a

rebuke from management are . . . those in support of union

activities. . . . The singling out of the union-supporting nurse for

rebuke was discrimination against union activities.”).

III

Finally, we consider the Register-Guard’s challenge to the

Board’s determination that it committed an unfair labor practice

15

by directing circulation district manager Ronald Kangail to stop

wearing a union armband and displaying a union placard when

working with the public.

“The right to wear union buttons or other insignia while at

work is generally protected by [Section 7 of] the NLRA.”

Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 946 (D.C. Cir. 1999)

(citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03

& n.7 (1945)). “In the absence of special circumstances, an

employer’s prohibition against wearing such insignia violates

section 8(a)(1).” Id.; see Waterbury Hotel Mgmt., LLC v. NLRB,

314 F.3d 645, 655 (D.C. Cir. 2003); Mack’s Supermarkets, Inc.,

288 N.L.R.B. 1082, 1098 (1988). When it bans the wearing of

union insignia, the employer bears the burden of overcoming the

presumption of an unfair labor practice by demonstrating that

special circumstances exist. See, e.g., Wal-Mart Stores, Inc. v.

NLRB, 400 F.3d 1093, 1098 (8th Cir. 2005); NLRB v. Malta

Constr. Co., 806 F.2d 1009, 1011 (11th Cir. 1986); Am. Fed’n

of Gov’t Employees, AFL-CIO, 278 N.L.R.B. 378, 385 (1986).

Special circumstances may include, inter alia, ensuring

employee safety, protecting the employer’s product, or

maintaining a certain employee image (especially with respect

to uniformed employees). See Nordstrom, Inc., 264 N.L.R.B.

698, 700 (1982). The company contends that there are special

circumstances here, which it describes as follows: “It is vitally

important to The Register-Guard that the public view it in the

most positive light to encourage subscription sales. To maintain

such a public image, The Register-Guard’s representatives (such

as Mr. Kangail) who interact with the public must present a

positive public image, putting The Register-Guard in a light that

will make the public want to subscribe to The Register-Guard.”

Register-Guard Br. 47.

16

This claim that Kangail’s appearance implicates a special

circumstance simply because he interacts with the public is

contrary to the NLRB’s longstanding rule that “customer

exposure to union insignia alone is not a special circumstance

allowing an employer to prohibit display of union insignia by

employees.” Flamingo Hilton-Laughlin, 330 N.L.R.B. 287, 292

(1999); see United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071

(6th Cir. 1994). Moreover, the company’s assertedly special

concern for its public image is at odds with the ALJ’s finding

that it maintained only an inconsistently described, “vague,

unwritten insignia policy [that] has not been enforced in a wide

variety of other situations.” Guard, 351 N.L.R.B. at 1137 (ALJ

Op.); see NLRB v. Autodie Int’l, Inc., 169 F.3d 378, 384 (6th

Cir. 1999) (“The employer’s burden of justifying restrictions of

Section 7 activity is particularly difficult to meet when the

employer cannot show that its restrictions on [union insignia]

comport with an announced policy of general applicability.”).

The company further contends that it has a “significant interest

in maintaining its public image of impartiality,” and that “the

partial image [Kangail] perpetuated” by wearing union insignia

“kept him from doing his job effectively and had the potential to

lead to a decrease in the number of The Register-Guard

customers.” Register-Guard Br. 47-48. Although this appears

to be a reference to the importance of maintaining an image of

journalistic neutrality, the Register-Guard does not explain why

that image would be threatened by the display of union insignia

by an employee like Kangail -- who had no responsibility at all

for reporting the news or formulating or articulating editorial

policy.

We cannot say that the Board acted unreasonably in

determining that the company failed to satisfy its burden of

establishing special circumstances. Guard, 351 N.L.R.B. at

1110 n.2; see Nordstrom, 264 N.L.R.B. at 700-01. Kangail was

a circulation department district manager whose principal

17

interaction was with contract carriers. The company has offered

nothing beyond its conclusory claims to support the proposition

that his wearing of a green armband or displaying other insignia

of union support could reasonably be expected to have an

adverse effect on business. We therefore will not set aside the

NLRB’s determination that the Register-Guard “violated Sec.

8(a)(1) by maintaining an overly broad rule prohibiting

employees from wearing or displaying union insignia while

working with the public.” Guard, 351 N.L.R.B. at 1110 n.2.

IV

For the foregoing reasons, we grant the union’s petition for

review, set aside the Board’s determination that the disciplining

of Prozanski for her August e-mails was not an unfair labor

practice, and remand that matter for further proceedings

consistent with this opinion. At the same time, we deny the

Register-Guard’s petition to review the Board’s determinations

that the company violated the National Labor Relations Act with

respect to Prozanski’s May e-mail and Kangail’s display of

union insignia. We grant the Board’s cross-application for

enforcement on those issues.

So ordered.