# DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The Guard Publishing Company d/b/a The RegisterGuard and Eugene Newspaper Guild, CWA Local 37194. Cases 36–CA–8743–1, 36–CA–8849–
1, 36–CA–8789–1, and 36–CA–8842–1
December 16, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, KIRSANOW, AND WALSH
In this case, we consider several issues relating to employees’ use of their employer’s e-mail system for Section 7 purposes. First, we consider whether the Respondent violated Section 8(a)(1) by maintaining a policy
prohibiting the use of e-mail for all “nonjob-related solicitations.” Second, we consider whether the Respondent violated Section 8(a)(1) by discriminatorily enforcing that policy against union-related e-mails while allowing some personal e-mails, and Section 8(a)(3) and (1) by
disciplining an employee for sending union-related emails. Finally, we consider whether the Respondent violated Section 8(a)(5) and (1) by insisting on an allegedly
illegal bargaining proposal that would prohibit the use of
e-mail for “union business.”
After careful consideration, we hold that the Respondent’s employees have no statutory right to use the Respondent’s e-mail system for Section 7 purposes. We
therefore find that the Respondent’s policy prohibiting
employee use of the system for “nonjob-related solicitations” did not violate Section 8(a)(1).
With respect to the Respondent’s alleged discriminatory enforcement of the e-mail policy, we have carefully
examined Board precedent on this issue. As fully set
forth herein, we have decided to modify the Board’s approach in discriminatory enforcement cases to clarify that
discrimination under the Act means drawing a distinction
along Section 7 lines. We then address the specific allegations in this case of discriminatory enforcement in accordance with this approach.
Finally, we find that the Respondent did not insist on
its bargaining proposal prohibiting the use of e-mail for
“union business.” Therefore, we dismiss the allegation
that the Respondent insisted on an illegal subject in violation of Section 8(a)(5) and (1).
I. BACKGROUND
On February 21, 2002, Administrative Law Judge John
J. McCarrick issued the attached decision. The Respondent and the General Counsel each filed exceptions and a
supporting brief, and the Charging Party filed crossexceptions and a supporting brief. The General Counsel
and Charging Party each filed an answering brief to the
Respondent’s exceptions. The Respondent filed an an-

351 NLRB No. 70

swering brief to the General Counsel’s exceptions and a
reply brief to the Charging Party’s answering brief.
On January 10, 2007, the National Labor Relations
Board issued a notice of oral argument and invitation to
the parties and interested amici curiae to file briefs. The
notice requested that the parties address specific questions concerning employees’ use of their employer’s email system (or other computer-based communication
systems) to communicate with other employees about
union or other Section 7 matters. The Board’s questions
included, among other things, whether employees have a
Section 7 right to use their employer’s e-mail system to
communicate with one another, what standard should
govern that determination, and whether an employer violates the Act if it permits other nonwork-related e-mails
but prohibits e-mails on Section 7 matters.
The General Counsel, the Charging Party, the Respondent, and various amici filed briefs.1 On March 27,
2007, the Board held oral argument.
The Board has considered the decision and the record
in light of the exceptions, briefs, and oral argument and
has decided to affirm the judge’s rulings, findings, and
conclusions in part,2 to reverse them in part, and to adopt
the recommended Order as modified and set forth in full
below.3
1
The General Counsel filed a preargument brief and a brief in response to the Respondent’s and amici’s briefs. The Charging Party and
the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) jointly filed a preargument brief. The Charging Party
also filed a reply brief to the Respondent’s and amici’s briefs. The
Respondent filed a preargument brief, a reply brief to the General
Counsel’s brief, and a reply brief to the brief jointly filed by the Charging Party and the AFL–CIO. Amicus briefs were filed by the Council
on Labor Law Equality, Employers Group, the HR Policy Association,
the Minnesota Management Attorneys Association, Proskauer Rose
LLP, the National Employment Lawyers Association, the National
Workrights Institute, and the United States Chamber of Commerce.
2
In addition to our other findings set forth herein, we adopt the
judge’s conclusion that the Respondent violated Sec. 8(a)(1) by maintaining an overly broad rule prohibiting employees from wearing or
displaying union insignia while working with the public. We agree
with the judge that the Respondent failed to show special circumstances
for the rule. We also reject the Respondent’s argument that the allegation is time-barred by Sec. 10(b) because the rule was promulgated
more than 6 months before the unfair labor practice charge. Although
the rule may have been promulgated outside the 10(b) period, the complaint also alleges, and the judge stated in his conclusions of law, that
the Respondent violated Sec. 8(a)(1) by “maintain[ing]” the rule. The
maintenance during the 10(b) period of a rule that transgresses employee rights is itself a violation of Sec. 8(a)(1). Eagle-Picher Industries, 331 NLRB 169, 174 fn. 7 (2000); Trus Joint MacMillan, 341
NLRB 369, 372 (2004); Control Services, 305 NLRB 435 fn. 2, 442
(1991).
3
We shall modify the judge’s conclusions of law and recommended
Order and substitute a new notice to conform to our findings and to the
Board’s standard remedial language.

REGISTER GUARD
II. FACTS

A. The Respondent’s Communications Systems Policy
The Respondent publishes a newspaper. The Union
represents a unit of about 150 of the Respondent’s employees. The parties’ last collective-bargaining agreement was in effect from October 16, 1996, though April
30, 1999. When the record closed, the parties were negotiating, but had not yet reached a successor agreement.
In 1996, the Respondent began installing a new computer system, through which all newsroom employees
and many (but not all) other unit employees had e-mail
access. In October 1996, the Respondent implemented
the “Communications Systems Policy” (CSP) at issue
here. The policy governed employees’ use of the Respondent’s communications systems, including e-mail.
The policy stated, in relevant part:
Company communication systems and the
equipment used to operate the communication system are owned and provided by the Company to assist in conducting the business of The RegisterGuard. Communications 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.
The Respondent’s employees use e-mail regularly for
work-related matters. Throughout the relevant time period, the Respondent was aware that employees also used
e-mail to send and receive personal messages. The record 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. However, there is no evidence that the employees
used e-mail to solicit support for or participation in any
outside cause or organization other than the United Way,
for which the Respondent conducted a periodic charitable
campaign.
B. Prozanski’s E-Mails and Resulting Discipline
Suzi Prozanski is a unit employee and the union president. In May and August 2000, Prozanski received two
written warnings for sending three e-mails to unit employees at their Register-Guard e-mail addresses. The
Respondent contends that the e-mails violated the CSP.
1. May 4, 2000 e-mail
The first e-mail involved a union rally that took place
on the afternoon of May 1, 2000. Earlier that day, Managing Editor Dave Baker sent an e-mail to employees
stating that they should try to leave work early because
the police had notified the Respondent that anarchists
might attend the rally. Employee Bill Bishop sent a reply e-mail to Baker and to many employees. Bishop’s e-

1111

mail message also attached an e-mail the Union had received from the police stating that the Respondent had
notified the police about the possibility of anarchists.
Thus, Bishop’s e-mail implied that Baker was mistaken
or untruthful when he told employees that the police had
notified the Respondent about the anarchists.
The rally took place as scheduled. Afterward, Prozanski learned that certain statements in Bishop’s e-mail had
been inaccurate. On May 2, Prozanski told Baker that
she wanted to communicate with employees to “set the
record straight.” Baker told her to wait until he talked to
Human Resources Director Cynthia Walden. On May 4,
Prozanski had not heard back from management about
her request, so she told Baker that she was going to send
an e-mail response. Baker said, “I understand.”4 Prozanski then sent an e-mail entitled, “setting it straight.”
She composed the e-mail on her break but sent it from
her work station. A few hours later, Baker told Prozanski that she should not have used company equipment to
send the e-mail.
Prozanski’s e-mail began: “In the spirit of fairness, I’d
like to pass on some information to you. . . . We have
discovered that some of the information given to you was
incomplete. . . . The Guild would like to set the record
straight.” The e-mail then set forth the facts surrounding
the call to police about anarchists attending the rally.
The e-mail was signed, “Yours in solidarity, Suzi Prozanski.”
On May 5, Baker issued Prozanski a written warning
for violating the CSP by using e-mail for “conducting
Guild business.”5
4
The judge found that Baker said, “OK, I understand.” The record
supports the finding that Baker said, “I understand,” but not that he said
“OK” or otherwise expressly gave Prozanski permission to send the email.
5
The warning stated in full:
On May 4, you 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 Communications Systems Policy.
This is the second time this week that the policy was disregarded
by officers of the Guild.
In our conversation on the afternoon of May 4, you acknowledged to me that the e-mail system was not to be used for Guild
business and that you “should have known better.” I agree.
What’s even more troubling to me, though, is that the message
you sent—on the company’s e-mail system—is now posted on the
Guild bulletin board, compounding the problem. 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. If you composed and sent this email on work time, that would also be inappropriate. This letter
will become part of your personnel file.
Baker also disciplined Bishop for his earlier e-mail about the union
rally. (The reference in Prozanski’s warning to “the second time this
week” is apparently a reference to Bishop’s e-mail.) The complaint

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2. E-Mails on August 14 and 18, 2000
Prozanski received a second written warning on August 22, 2000, for two e-mails sent on August 14 and 18.
The August 14 e-mail asked employees to wear green to
support the Union’s position in negotiations. The August
18 e-mail asked employees to participate in the Union’s
entry in an upcoming town parade. As with the May 4 email, Prozanski sent these e-mails to multiple unit employees at their Register-Guard e-mail addresses. However, this time she sent the e-mails from a computer in
the Union’s office, located off the Respondent’s premises. Prozanski testified she thought that the May 5
warning was for using the Company’s equipment to send
the message, and that there would be no problem if she
sent e-mails from the Union’s office instead. On August
22, however, Walden issued Prozanski a written warning,
stating that Prozanski had violated the CSP by using the
Respondent’s communications system for Guild activities. The warning quoted the CSP’s prohibition on “nonjob-related solicitations.”
C. Respondent’s Bargaining Proposal
Concerning E-Mail Use
About October 25, 2000, during bargaining, the Respondent presented the Union with “counterproposal 26,”
which proposed the following contract language:
The electronic communications systems are the property of the Employer and are provided for business use
only. They may not be used for union business.
On November 15, 2000, the Respondent clarified to
the Union in writing that counterproposal 26 “only prohibits use of the systems for union business.” (Emphasis
in original.) The Respondent stated that its existing CSP
“will govern the use of systems in situations ‘other than’
union business.”
On November 16, 2000, the Union stated that it would
not respond to the proposal because the Union viewed
the proposal as illegally restricting Section 7 rights. On
November 30, 2000, the Union filed a charge alleging
that the Respondent violated Section 8(a)(5) by proposing counterproposal 26. The Region dismissed the
charge on March 31, 2001.
In April 2001, the Union requested, and the Respondent provided, additional information on the scope of
counterproposal 26. On April 21, the parties also discussed the proposal at the bargaining table. The Union’s
lead negotiator, Lance Robertson, noted that the Union’s
unfair labor practice charge had been dismissed. Aldoes not allege that Bishop’s discipline or the enforcement of the CSP
against Bishop was unlawful.

though Robertson continued to press for additional clarification of the proposal, he also told the Respondent:
“I’m here to bargain a proposal.” At the hearing, he testified that the Union’s position as of April 21 was that it
“neither accepted nor rejected” counterproposal 26. The
Union never made a counterproposal. The parties stipulated that counterproposal 26 has been the Respondent’s
position since October 25, 2000.
On April 24, 2001, the Union filed a new charge alleging that the Respondent had proposed and “refus[ed] to
withdraw” counterproposal 26. On August 13, 2001, the
Region revoked its dismissal of the previous charge.
III. THE JUDGE’S DECISION
Noting that an employer may lawfully limit employee
use of the employer’s equipment or media, the judge
found that the Respondent did not violate Section 8(a)(1)
by maintaining the CSP. However, the judge found that
the Respondent did violate Section 8(a)(1) by discriminatorily enforcing the CSP to prohibit union-related e-mails
while allowing a variety of other nonwork-related emails. The judge also found that the Respondent violated
Section 8(a)(3) and (1) by disciplining Prozanski for her
May 4 and August 14 and 18 e-mails. Finally, the judge
found that the Respondent violated Section 8(a)(5) and
(1) by insisting on counterproposal 26, which the judge
found was a codification of the Respondent’s discriminatory practice of allowing personal e-mails but not unionrelated e-mails.
IV. POSITIONS OF THE PARTIES AND AMICI
A. The General Counsel
The General Counsel argues that under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), rules limiting
employee communication in the workplace should be
evaluated by balancing employees’ Section 7 rights and
the employer’s interest in maintaining discipline. The
General Counsel contends that e-mail cannot neatly be
characterized as either “solicitation” or “distribution.”
Nevertheless, e-mail has become the most common
“gathering place” for communications on work and nonwork issues. Because the employees are rightfully on the
employer’s property, the employer does not have an indefeasible interest in banning personal e-mail just because the employer owns the computer system. The
General Counsel distinguishes the Board’s decisions that
find no Section 7 right to use an employer’s bulletin
boards, telephones, and other equipment6 on the basis
that those cases did not involve interactive, electronic
communications regularly used by employees, nor did
they involve equipment used on networks where thou6

These cases are discussed in sec. V,A below.

REGISTER GUARD

sands of communications occur simultaneously. However, the General Counsel concedes that the employer
has an interest in limiting employee e-mails to prevent
liability for inappropriate content, to protect against system overloads and viruses, to preserve confidentiality,
and to maintain productivity.
The General Counsel therefore proposes that broad
rules prohibiting nonbusiness use of e-mail should be
presumptively unlawful, absent a particularized showing
of special circumstances. The General Counsel would
evaluate other limitations on employee e-mail use (short
of a complete ban) on a case-by-case basis.
With respect to whether an employer may prohibit
employees from sending union-related e-mails while
allowing other personal e-mails, the General Counsel
notes that this conduct would violate Section 8(a)(1) under current Board precedent. The General Counsel disagrees with the Respondent’s contention that employees
communicating about a union are working on behalf of
an “outside organization.”
B. The Charging Party and Amicus AFL–CIO
The Charging Party and AFL–CIO jointly filed a preargument brief. They contend that where an employer
allows employees to use the e-mail system to communicate with each other on nonbusiness matters generally,
the employees are already rightfully on the employer’s
property, in the sense that they have been allowed access
to the e-mail system. Thus, it is the employer’s management interests, not its property interests, that are implicated. The employer may impose a nondiscriminatory
restriction on e-mail communications during working
time, but may impose additional restrictions only by
showing that they are necessary to further substantial
management interests.
In a reply brief, the Charging Party argues that if the
Board is faced with a conflict between property rights
and Section 7 rights, the Board must balance the two sets
of interests. The Board should first determine the impact
of the restriction on employee rights, and then determine
the effect on the employer’s property rights of forbidding
the restriction.
With respect to enforcement of the CSP, the Charging
Party and AFL–CIO argue that, because the Respondent
allowed personal use of e-mail generally, the Respondent
violated the Act by enforcing the CSP against Prozanski
for sending union-related messages.
C. The Respondent
The Respondent argues that there is no Section 7 right
to use the Respondent’s e-mail system. E-mail, as part of
the computer system, is equipment owned by the Respondent for the purpose of conducting its business. The

1113

Respondent notes that under Board precedent, an employer may restrict the nonbusiness use of its equipment.
The Respondent argues that Republic Aviation and other
cases dealing with oral solicitation are inapposite because they do not involve use of the employer’s equipment. The Respondent observes that the Union and employees here have many means of communicating in addition to e-mail.
With respect to whether an employer has discriminatorily enforced its e-mail prohibition, the Respondent argues that the correct comparison is not between personal
e-mails and union-related e-mails. Rather, the Respondent argues that in order to determine whether discriminatory enforcement has occurred, the Board should examine whether the employer has banned union-related emails but has permitted outside organizations to use the
employer’s equipment to sell products, to distribute “persuader” literature, to promote organizational meetings, or
to induce group action. The Respondent argues that under this standard, the enforcement of the CSP against
Prozanski was not discriminatory.
D. Amici Supporting the General Counsel and
Charging Party
The National Employment Lawyers Association
(NELA) argues that employer e-mail systems are no different from lunchrooms or breakrooms, and that any attempt to proscribe e-mail communications on nonworking time would contravene Republic Aviation. With
respect to enforcement of the CSP against Prozanski,
NELA notes that the Respondent’s CSP prohibits only
“nonjob-related” solicitations. NELA contends that the
union-related e-mails for which Prozanski was disciplined should be considered job related.
The National Workrights Institute argues that e-mail is
becoming the predominant method of business communication, and that most employer e-mail policies allow
some personal use. However, the Institute contends that
most policies are vague and applied on an ad hoc basis,
and such uncertainty chills employee use of e-mail for
Section 7 purposes. Thus, the Institute argues, banning
union-related e-mails, either officially or in practice,
should be deemed to violate Section 8(a)(1).
E. Amici Supporting the Respondent
Amici supporting the Respondent emphasize the employer’s property interest. They argue that an employer
should be permitted to impose nondiscriminatory restrictions on e-mail use, just as the employer may do with
respect to its other equipment. The HR Policy Association, the Minnesota Management Attorneys Association,
and the United States Chamber of Commerce contend
that e-mail does not fit neatly into the Board’s analytical

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

framework for workplace solicitation and distribution.
The Employers Group and the HR Policy Association
also contend, alternatively, that if the Board does decide
to analyze e-mail as either solicitation or distribution, email should be considered more analogous to distribution. The Employers Group and the United States
Chamber of Commerce further argue that an employer
that does allow personal e-mail use must be permitted to
impose reasonable, nondiscriminatory limits on e-mail
use, such as those relating to the size of messages, the
size of attachments, and the number of recipients.
Amici supporting the Respondent generally argue that
an employer does not violate the Act simply because it
permits some personal e-mails while prohibiting solicitations on behalf of unions or other organizations.
V. DISCUSSION
For the reasons set forth below, we agree with the
judge that the Respondent did not violate Section 8(a)(1)
by maintaining the CSP. We also agree with the judge
that the Respondent’s enforcement of the CSP with respect to Prozanski’s May 4 e-mail was discriminatory
and therefore violated Section 8(a)(1). Likewise, the
written warning issued to Prozanski for the May 4 e-mail
violated Section 8(a)(3) and (1).
However, we reverse the judge and dismiss the allegations that the Respondent’s application of the CSP to
Prozanski’s August 14 and 18 e-mails was discriminatory. We also find no 8(a)(3) violation as to Prozanski’s
discipline for those e-mails. Finally, we reverse the
judge and dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by insisting on counterproposal 26.
A. Maintenance of the CSP
The CSP, in relevant part, prohibits employees from
using the Respondent’s e-mail system for any “nonjobrelated solicitations.” Consistent with a long line of
cases governing employee use of employer-owned
equipment, we find that the employees here had no statutory right to use the Respondent’s e-mail system for Section 7 matters. Therefore, the Respondent did not violate
Section 8(a)(1) by maintaining the CSP.
An employer has a “basic property right” to “regulate
and restrict employee use of company property.” Union
Carbide Corp. v. NLRB, 714 F.2d 657, 663–664 (6th Cir.
1983). The Respondent’s communications system, including its e-mail system, is the Respondent’s property
and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the
Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and
that employers who have invested in an e-mail system

have valid concerns about such issues as preserving
server space, protecting against computer viruses and
dissemination of confidential information, and avoiding
company liability for employees’ inappropriate e-mails.
Whether employees have a specific right under the Act
to use an employer’s e-mail system for Section 7 activity
is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees
have the right to use other types of employer-owned
property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has
consistently held that there is “no statutory right . . . to
use an employer’s equipment or media,” as long as the
restrictions are nondiscriminatory.7
Mid-Mountain
Foods, 332 NLRB 229, 230 (2000) (no statutory right to
use the television in the respondent’s breakroom to show
a prounion campaign video), enfd. 269 F.3d 1075 (D.C.
Cir. 2001). See also Eaton Technologies, 322 NLRB
848, 853 (1997) (“It is well established that there is no
statutory right of employees or a union to use an employer’s bulletin board.”); Champion International
Corp., 303 NLRB 102, 109 (1991) (stating that an employer has “a basic right to regulate and restrict employee
use of company property” such as a copy machine);
Churchill’s Supermarkets, 285 NLRB 138, 155 (1987)
(“[A]n employer ha[s] every right to restrict the use of
company telephones to business-related conversations
. . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988), cert. denied
490 U.S. 1046 (1989); Union Carbide Corp., 259 NLRB
974, 980 (1981) (employer “could unquestionably bar its
telephones to any personal use by employees”), enfd. in
relevant part 714 F.2d 657 (6th Cir. 1983); cf. Heath Co.,
196 NLRB 134 (1972) (employer did not engage in objectionable conduct by refusing to allow prounion employees to use public address system to respond to antiunion broadcasts).8
Our dissenting colleagues, however, contend that this
well-settled principle—that employees have no statutory
right to use an employer’s equipment or media for Section 7 communications—should not apply to e-mail systems. They argue that the decisions cited above involving employer telephones—Churchill’s Supermarkets and
Union Carbide—were decided on discriminatory enforcement grounds, and therefore their language regarding an employer’s right to ban nonbusiness use of its
7
The separate allegation that the Respondent discriminatorily enforced the CSP is discussed in sec. V,B below.
8
We do not rely on Adtranz, 331 NLRB 291 (2000), enf. denied 253
F.3d 19 (D.C. Cir. 2001), cited by the judge. In Adtranz, there were no
exceptions to the judge’s dismissal of an allegation that the employer
violated Sec. 8(a)(1) by maintaining a rule restricting the use of e-mail
for nonbusiness purposes.

REGISTER GUARD

telephones was dicta. The Board, however, reaffirmed
Union Carbide in Mid-Mountain Foods, supra, citing it
for the specific principle that employees have no statutory right to use an employer’s telephone for nonbusiness purposes. See 332 NLRB at 230.
Nevertheless, our dissenting colleagues assert that the
issue of employees’ use of their employer’s e-mail system should be analyzed under Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), by balancing employees’
Section 7 rights and the employer’s interest in maintaining discipline, and that a broad ban on employee nonwork-related e-mail communications should be presumptively unlawful absent a showing of special circumstances. We disagree and find the analytical framework
of Republic Aviation inapplicable here.
In Republic Aviation, the employer maintained a general rule prohibiting all solicitation at any time on the
premises. The employer discharged an employee for
soliciting union membership in the plant by passing out
application cards to employees on his own time during
lunch periods. The Board found that the rule and its enforcement violated Section 8(a)(1), and the Supreme
Court affirmed. The Court recognized that some “dislocation” of employer property rights may be necessary in
order to safeguard Section 7 rights. See 324 U.S. at 802
fn. 8. The Court noted that the employer’s rule “entirely
deprived” employees of their right to communication in
the workplace on their own time. Id. at 801 fn. 6. The
Court upheld the Board’s presumption that a rule banning all solicitation during nonworking time is “an unreasonable impediment to self-organization . . . in the
absence of evidence that special circumstances make the
rule necessary in order to maintain production or discipline.” Id. at 803 fn. 10. Otherwise, employees would
have no time at the workplace in which to engage in Section 7 communications.9
In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s CSP does not regulate
traditional, face-to-face solicitation. Indeed, employees
at the Respondent’s workplace have the full panoply of
rights to engage in oral solicitation on nonworking time
and also to distribute literature on nonworking time in
nonwork areas, pursuant to Republic Aviation and
Stoddard-Quirk. What the employees seek here is use of
the Respondent’s communications equipment to engage
9
In a later case, the Board held that employees may also engage in
distribution on nonworking time in nonwork areas. Stoddard-Quirk
Mfg. Co., 138 NLRB 615 (1962). Because we find that e-mail use is
governed by the decisions dealing with the use of an employer’s
equipment, and not by cases dealing with oral solicitation and distribution of literature, we need not address the arguments by some amici that
e-mail is more analogous to distribution than to solicitation.

1115

in additional forms of communication beyond those that
Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather
than particular means by which employees may seek to
communicate.” Guardian Industries Corp. v. NLRB, 49
F.3d 317, 318 (7th Cir. 1995); see also NLRB v. Steelworkers (Nutone), 357 U.S. 357, 363–364 (1958) (The
Act “does not command that labor organizations as a
matter of law, under all circumstances, be protected in
the use of every possible means of reaching the minds of
individual workers, nor that they are entitled to use a
medium of communications simply because the Employer is using it.”). Republic Aviation requires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” 324 U.S. at 801 fn. 6, of their ability to engage
in Section 7 communications in the workplace on their
own time. It does not require the most convenient or
most effective means of conducting those communications, nor does it hold that employees have a statutory
right to use an employer’s equipment or devices for Section 7 communications.10 Indeed, the cases discussed
above, in which the Board has found no Section 7 right
to use an employer’s equipment, were decided long after
Republic Aviation and have been upheld by the courts.
See, e.g., NLRB v. Southwire Co., 801 F.2d 1252, 1256
(11th Cir. 1986) (no statutory right to use an employer’s
bulletin board); Union Carbide Corp. v. NLRB, 714 F.2d
657, 663 (6th Cir. 1983) (“As recognized by the ALJ,
Union Carbide unquestionably had the right to regulate
and restrict employee use of company property.”) (emphasis in original).
The dissent contends that because the employees here
are already rightfully on the Respondent’s premises, only
the Respondent’s managerial interests—and not its property interests—are at stake. That would be true if the
issue here concerned customary, face-to-face solicitation
and distribution, activities that involve only the employees’ own conduct during nonwork time and do not in10
The Board recently distinguished Republic Aviation in a case involving employee use of an employer’s personal property. In Johnson
Technology, Inc., 345 NLRB 762, 763 (2005), the Board found that the
respondent did not violate Sec. 8(a)(1) by prohibiting an employee
from using the employer’s scrap paper to prepare a union meeting
notice. The Board emphasized that “it is not unlawful for an employer
to caution employees to restrict the use of company property to business purposes.” Rejecting the General Counsel’s reliance on Republic
Aviation, the Board further noted: “The issue in Republic Aviation was
whether an employer’s right to control the activities of employees
lawfully on its premises was subject to limitations to accommodate the
employees’ Sec. 7 rights, such as to engage in prounion solicitations.
Here, the question is whether an employee can take and use the employer’s personalty, without its consent, to engage in a nonwork-related
purpose such as a Sec. 7 activity.” Id. at 763 fn. 8.

1116

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

volve use of the employer’s equipment. Being rightfully
on the premises, however, confers no additional right on
employees to use the employer’s equipment for Section 7
purposes regardless of whether the employees are authorized to use that equipment for work purposes.11
The dissent contends that e-mail has revolutionized
business and personal communications and that, by failing to carve out an exception for it to settled principles
regarding use of employer property, we are failing to
adapt the Act to the changing patterns of industrial life.
The dissent attempts to distinguish use of e-mail from
other communication equipment based on e-mail’s interactive nature and its ability to process thousands of
communications simultaneously.
We recognize that e-mail has, of course, had a substantial impact on how people communicate, both at and
away from the workplace. Moreover, e-mail has some
differences from as well as some similarities to other
communications methods, such as telephone systems.
For example, as the dissent points out, transmission of an
e-mail message, unlike a telephone conversation, does
not normally “tie up” the line and prevent the simultaneous transmission of messages by others. On the other
hand, e-mail messages are similar to telephone calls in
many ways. Both enable virtually instant communication regardless of distance, both are transmitted electronically, usually through wires (sometimes the very
same fiber-optic cables) over complex networks, and
both require specialized electronic devices for their
transmission. Although the widespread use of telephone
systems has greatly impacted business communications,
the Board has never found that employees have a general
right to use their employer’s telephone system for Section 7 communications.
In any event, regardless of the extent to which communication by e-mail systems is similar to or different
from communication using other devices or systems, it is
clear that use of the Respondent’s e-mail system has not
eliminated face-to-face communication among the Respondent’s employees or reduced such communication to
an insignificant level. Indeed, there is no contention in
11
Testimony in the record that sending or receiving a simple “text”
e-mail does not impose any additional monetary cost on the Respondent
is of no consequence to our inquiry here. The Respondent’s property
rights do not depend on monetary cost. Cf. Johnson Technology, supra
at 763 (“[T]he issue is whether the [employees’] use of the property
was protected, not how much the property is worth.”). Moreover, although the dissent, noting that “the Respondent does not own cyberspace,” seems to question the very existence of Respondent’s property
interest in its e-mail system, it is beyond doubt that the Respondent has
a property interest in its servers that host its e-mail system and in the
software on which it operates, as well as its computers on which the
employees access e-mail.

this case that the Respondent’s employees rarely or never
see each other in person or that they communicate with
each other solely by electronic means. Thus, unlike our
dissenting colleagues, we find that use of e-mail has not
changed the pattern of industrial life at the Respondent’s
facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been
rendered useless and that employee use of the Respondent’s e-mail system for Section 7 purposes must therefore be mandated. Consequently, we find no basis in this
case to refrain from applying the settled principle that,
absent discrimination, employees have no statutory right
to use an employer’s equipment or media for Section 7
communications.12
Accordingly, we hold that the Respondent may lawfully bar employees’ nonwork-related use of its e-mail
system, unless the Respondent acts in a manner that discriminates against Section 7 activity.13 As the CSP on its
face does not discriminate against Section 7 activity, we
find that the Respondent did not violate Section 8(a)(1)
by maintaining the CSP.
B. Alleged Discriminatory Enforcement of the CSP
The judge found that the Respondent 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. We affirm the violation as to
Prozanski’s May 4 e-mail, but reverse and dismiss as to
her August e-mails. In doing so, we modify Board law
concerning discriminatory enforcement.14
12
Contrary to the dissent, in reaching this conclusion, we are not applying an “alternative means of communication” test appropriate only
for questions of nonemployee access. See Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992). Rather, we are merely examining whether, as asserted
by the dissent, e-mail has so changed workplace communication that
the Board should depart from settled precedent and order that the Respondent must permit employees to use its e-mail system to communicate regarding Sec. 7 matters. Such an analysis necessarily requires
examination of whether the face-to-face solicitation and distribution
permitted under Republic Aviation no longer enable employees to
communicate. As we find controlling here the principle that employees
have no statutory right to use an employer’s equipment or media for
Sec. 7 communications, neither Republic Aviation nor Lechmere is
applicable.
13
We do not pass on circumstances, not present here, in which there
are no means of communication among employees at work other than
e-mail.
14
The Respondent contends that all allegations regarding enforcement of the CSP are time-barred by Sec. 10(b), which states in relevant
part that “no complaint shall issue based upon any unfair labor practice
occurring more than 6 months prior to the filing of the charge with the
Board.” The Respondent argues that the 10(b) period runs from 1996,
when the CSP was promulgated. The Respondent further argues that it
gave the Union clear and unequivocal notice in 1997 that the Respondent would invoke the CSP to prohibit union-related e-mails. The
Respondent relies on a 1997 memo from a manager to the Union’s
then-president, Bill Bishop, stating: “I will take responsibility for

REGISTER GUARD

1. The appropriate analysis for alleged
discriminatory enforcement
In finding that the Respondent discriminatorily enforced the CSP, the judge relied on evidence that the
Respondent had permitted employees to use e-mail for
various personal messages. Specifically, the record
shows that the Respondent permitted e-mails such as
jokes, baby announcements, party invitations, and the
occasional offer of sports tickets or request for services
such as dog walking.15 However, there is no evidence
that the Respondent allowed employees (or anyone else)
to use e-mail to solicit support for or participation in any
outside cause or organization other than the United Way,
for which the Respondent conducted a periodic charitable
campaign.
Citing Fleming Co., 336 NLRB 192 (2001), enf. denied 349 F.3d 968 (7th Cir. 2003), the judge found that
“[i]f an employer allows employees to use its communications equipment for nonwork related purposes, it may
not validly prohibit employee use of communications
equipment for Section 7 purposes.” We agree with the
judge that the Board’s decision in Fleming would support
that proposition. However, having carefully examined
current precedent, we find that the Board’s approach in
Fleming and other similar cases fails to adequately examine whether the employer’s conduct discriminated
against Section 7 activity.
In Fleming, the Board held that the employer violated
Section 8(a)(1) by removing union literature from a bulletin board because the employer had allowed “a wide
range of personal postings” including wedding anopening the door to use e-mail for Company/Union communications
. . . I am now closing that door: E-mail will no longer be used for
Company/Union communications. This of course applies also to using
e-mail for Union or any other non-Company solicitations between
employees.”
We find no merit in the Respondent’s argument that the 10(b) period
runs from the promulgation of the policy in 1996 or from the 1997
memo to Bishop. The Board considers each instance of disparate enforcement of a policy to be a separate and independent act for purposes
of Sec. 10(b). Norman King Electric, 334 NLRB 154, 162 (2001).
Moreover, even assuming the 1997 memo constituted notice to the
Union that the Respondent would enforce the e-mail policy against
union-related e-mails, the Respondent’s later actions were inconsistent
with that memo. The Respondent did not adhere to its own statement
that it was “closing the door” to using e-mail for union communications. The Respondent and the Union continued to communicate with
one another by e-mail on matters such as scheduling bargaining sessions, and employees and managers continued to use e-mail for personal messages until the Prozanski incidents in 2000. Thus, the Union
reasonably would have believed the Respondent was not following the
1997 memo. Accordingly, we reject the Respondent’s 10(b) defense.
15
The judge’s finding that Weight Watchers had access to the Respondent’s e-mail system is not supported. The record shows that the
Respondent distributed information on a Weight Watchers program
through payroll stuffers, not e-mail.

1117

nouncements, birthday cards, and notices selling personal
property such as cars and a television. There was no
evidence that the employer had allowed postings for any
outside clubs or organizations. Id. at 193–194.16 Likewise, in Guardian Industries, 313 NLRB 1275 (1994),
enf. denied 49 F.3d 317 (7th Cir. 1995), the Board found
an 8(a)(1) violation where the employer allowed personal
“swap and shop” postings but denied permission for union or other group postings, including those by the Red
Cross and an employee credit union.
The Seventh Circuit denied enforcement in both cases.
Fleming, supra, 349 F.3d at 968; Guardian, supra, 49
F.3d at 317. In Guardian, the court started from the
proposition that employers may control the activities of
their employees in the workplace, “both as a matter of
property rights (the employer owns the building) and of
contract (employees agree to abide by the employer’s
rules as a condition of employment).” Id. at 317. Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that
the concept of discrimination involves the unequal treatment of equals. See id. at 319. The court emphasized
that the employer had never allowed employees to post
notices of organizational meetings. Rather, the nonworkrelated postings permitted by the employer consisted
almost entirely of “swap and shop” notices advertising
personal items for sale. The court stated: “We must
therefore ask in what sense it might be discriminatory to
distinguish between for-sale notes and meeting announcements.” Id. at 319. The court ultimately concluded that “[a] rule banning all organizational notices
(those of the Red Cross along with meetings pro and con
unions) is impossible to understand as disparate treatment of unions.” Id. at 320.
In Fleming, the court reaffirmed its decision in Guardian and further stated:
Just as we have recognized for-sale notices as a category of notices distinct from organizational notices
(which would include union postings), we can now add
the category of personal postings. The ALJ’s factual
finding that Fleming did not allow the posting of organizational material on its bulletin boards does not support the conclusion that Fleming violated Section
8(a)(1) by prohibiting the posting of union materials.
349 F.3d at 975.
We find that the Seventh Circuit’s analysis, rather than
existing Board precedent, better reflects the principle that
discrimination means the unequal treatment of equals.
16
Chairman Hurtgen, dissenting, would have dismissed the allegation based on the absence of any evidence that the employer permitted
postings of any outside organizations. Id. at 194–195.

1118

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Thus, in order to be unlawful, discrimination must be
along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or
communications of a similar character because of their
union or other Section 7-protected status. See, e.g.,
Fleming, supra, 349 F.3d at 975 (“[C]ourts should look
for disparate treatment of union postings before finding
that an employer violated Sec. 8(a)(1).”); Lucile Salter
Packard Children’s Hospital at Stanford v. NLRB, 97
F.3d 583, 587 (D.C. Cir. 1996) (charging party must
demonstrate that “the employer treated nonunion solicitations differently than union solicitations”).
For example, an employer clearly would violate the
Act if it permitted employees to use e-mail to solicit for
one union but not another, or if it permitted solicitation
by antiunion employees but not by prounion employees.17 In either case, the employer has drawn a line between permitted and prohibited activities on Section 7
grounds. However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That
is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g.,
Avon products), between invitations for an organization
and invitations of a personal nature, between solicitations
and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, 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.18 For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and
the Salvation Army, but it would prohibit solicitations
for Avon and the union.19
17
On the other hand, an employer may use its own equipment to
send antiunion messages, and still deny employees the opportunity to
use that equipment for prounion messages. As noted above, employees
are not entitled to use a certain method of communication just because
the employer is using it. See Nutone, supra at 363–364.
18
Of course, if the evidence showed that the employer’s motive for
the line drawing was antiunion, then the action would be unlawful.
There is no such evidence here.
Member Kirsanow notes that in determining whether a facially Section 7-neutral line has been drawn with an antiunion motive, the employer’s reasonable interest in drawing that particular line would be, for
Member Kirsanow, a relevant consideration. That is, if the line drawn
has the effect of prohibiting all Section 7 communications and is not
based on any reasonable employer interest, Member Kirsanow would
find an antiunion motive to be a permissible inference.
19
Indeed, the Board has already recognized that allowing limited
charitable solicitations does not necessarily require an employer to
allow union solicitations. See Hammary Mfg. Corp., 265 NLRB 57
(1982) (an employer will not violate Sec. 8(a)(1) by “permitting a small
number of isolated ‘beneficent acts’”—such as solicitation for a United

The dissent contends that our analysis is misplaced because, in 8(a)(1) cases, discrimination is not the essence
of the violation. Rather, the dissent asserts that discrimination is relevant in 8(a)(1) cases merely because it
weakens or exposes as pretextual the employer’s business justification for its actions. In our view, the dissent
overlooks the Supreme Court’s inhospitable response to
this theory and too readily writes off discrimination as
the essential basis of many 8(a)(1) violations.
The dissent argues that denying employees access to
the employer’s e-mail system for union solicitations
while permitting access for other types of messages undermines the employer’s business justification and constitutes discrimination. This argument is at odds with
Supreme Court precedent. In NLRB v. Steelworkers, 357
U.S. 357 (1958), the Court reviewed the Board’s finding
in Avondale Mills, 115 NLRB 840 (1956), that the employer violated Section 8(a)(1) when it denied employees
worktime access to their coworkers for union solicitation
while permitting supervisors to engage in antiunion solicitation on working time. Even though supervisors and
employees were not similarly situated, the Board found
the employer’s rule discriminatory because it diminished
the employees’ ability to communicate their organizational message and the employer’s exception for supervisors belied the working-time-is-for-work justification.
Id. at 842. The Supreme Court disagreed. Although the
Court left the Board free in future cases to proceed on a
theory of actual discrimination, it rejected the notion that
a difference in treatment between any two groups not
similarly situated that undermines the employer’s asserted business justification violates Section 8(a)(1).
According to the Court, there could be no unfair labor
practice finding in such circumstances unless, in view of
the available alternate channels of communication, the
employer had truly diminished the ability of the labor
organization involved to carry its message to the employees.
It is not surprising, therefore, that the dissent fails to
acknowledge that many decisions require actual discrimination. For example, as the Board noted in Salmon
Run Shopping Center, 348 NLRB 658 (2006), the Supreme Court has held that “an employer violates 8(a)(1)
of the Act by prohibiting nonemployee distribution of
union literature if its actions ‘discriminate against the
union by allowing other distribution.’” Id. at 658, quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956). After determining that the employer’s decision
to deny the union access was based “solely on the UnWay campaign—as “narrow exceptions” to a no-solicitation rule, while
prohibiting union solicitation).

REGISTER GUARD

ion’s status as a labor organization and its desire to engage in labor-related speech,” the Board found in Salmon
Run that “[s]uch discriminatory exclusion” violated Section 8(a)(1). Salmon Run Shopping Center, above at 659.
Similarly, in Enloe Medical Center, 348 NLRB 991
(2006), the Board found that the employer violated Section 8(a)(1) by sending employees a message stating that
“it is not appropriate for union literature to be . . . placed
in our breakroom.” The Board found that the message
was discriminatory, and therefore unlawful, because it
“barred only union literature, and no other, from being
placed in the breakroom.” Id. at 991.
To be sure, the cases on which the dissent relies include language suggesting that the employers’ unlawful,
discriminatory conduct tended to undermine their asserted business justifications.20 However, the presence of
such language in those cases does not negate the many
cases that find discriminatory conduct violative of Section 8(a)(1) purely on the basis of the conduct’s discriminatory nature.
We therefore adopt the position of the court in Guardian and Fleming 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, and we shall apply this view in the
present case and in future cases.21 Accordingly, in determining whether the Respondent discriminatorily enforced the CSP, we must examine the types of e-mails
allowed by the Respondent and ask whether they show
discrimination along Section 7 lines.22
2. Application of the standard
Prozanski’s August 14 e-mail urged all employees to
wear green to support the Union. Her August 18 e-mail
urged employees to participate in the Union’s entry in a
20
Honeywell, Inc., 722 F.2d 405, 407 (8th Cir. 1983); Sprint/United
Management Co., 326 NLRB 397, 399 (1998); Churchill’s Supermarkets, 285 NLRB 138, 156 (1987).
21
Accordingly, we overrule the Board’s decisions in Fleming,
Guardian, and other similar cases to the extent they are inconsistent
with our decision here.
We note, however, that our view of “discrimination” is broader than
that of some courts. See, e.g., Cleveland Real Estate Partners v. NLRB,
95 F.3d 457, 465 (6th Cir. 1996) (in case involving nonemployee access to an employer’s premises, court defined “discrimination” as “favoring one union over another or allowing employer-related information while barring similar union-related information”).
22
We also reject the dissent’s assertion that our test, taken to its
logical extreme, is a license for an employer to permit almost anything
but union communication as long as the employer does not expressly
say so. Indeed, the hypothetical postulated by the dissent shows the
fallacy of this assertion. Thus, contrary to the dissent, a rule barring all
nonwork-related solicitations by membership organizations certainly
would not “permit employees to solicit on behalf of virtually anything
except a union,” given the vast number of membership organizations in
which employees may participate.

1119

local parade. Both messages called for employees to
take action in support of the Union. The evidence shows
that the Respondent tolerated personal employee e-mail
messages concerning social gatherings, jokes, baby announcements, and the occasional offer of sports tickets or
other similar personal items. Notably, however, there is
no evidence that the Respondent permitted employees to
use e-mail to solicit other employees to support any
group or organization.23 Thus, the Respondent’s 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).24
Prozanski’s May 4 e-mail, however, was not a solicitation. It did not call for action; it simply clarified the facts
surrounding the Union’s rally the day before. As noted
above, the Respondent permitted a variety of nonworkrelated 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 Respondent is that Prozanski’s e-mail was
union-related. Accordingly, we find that the Respondent’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).25
23
The sole exception is the limited use of e-mail in connection with
the Respondent’s United Way campaign, which does not establish
discriminatory enforcement. Hammary Mfg. Corp., 265 NLRB 57
(1982) (an employer does not violate 8(a)(1) “by permitting a small
number of isolated ‘beneficent acts’ as narrow exceptions to a nosolicitation rule”).
24
The dissent asserts that there is no clear evidence that the Respondent ever enforced the CSP against anything other than union-related
messages. However, there is no evidence that any employee had ever
previously sent e-mails soliciting on behalf of any groups or organizations. Accordingly, given the absence of evidence that the Respondent
permitted employees to use e-mail to solicit support for groups or organizations, we decline to find that the Respondent’s barring of e-mail
solicitation on behalf of the Union constituted disparate treatment of
activities or communications of a similar character.
The dissent further argues that the Respondent’s barring of e-mail
solicitations on behalf of the Union was unlawful because the CSP
barred all “nonjob-related” solicitations, but the Respondent—in practice—permitted personal e-mail messages, such as jokes, baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. We note, however, that
the court of appeals in Fleming Co., above, similarly found lawful the
employer’s removal of union literature from a bulletin board even
though the employer’s rule barring posting of all noncompany material
was not enforced and posting of personal notices was routinely allowed.
25
The Respondent argues that in sending all three e-mails, Prozanski
was acting as a nonemployee union agent, not as an employee, and that
her conduct is therefore governed by Lechmere, Inc. v. NLRB, 502 U.S.
527 (1992). Lechmere holds that an employer may exclude nonemployee union agents from its property, except where the employer acts
discriminatorily or where the union has no reasonable alternative means
to communicate with the employees. Id. at 535, 538. Prozanski was

1120

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

C. The 8(a)(3) Allegations
We agree with the judge that the May 5 warning to
Prozanski violated Section 8(a)(3) and (1). Contrary to
the judge, however, we find it unnecessary to engage in a
Wright Line26 analysis. Wright Line is appropriately used
in cases “turning on employer motivation.” 251 NLRB
at 1089. A Wright Line analysis is not appropriate where
the conduct for which the employer claims to have disciplined the employee was union or other protected activity. See St. Joseph’s Hospital, 337 NLRB 94, 95 (2001)
(warning for displaying union-related screen saver violated 8(a)(3) where employer allowed other nonworkrelated screen savers), enfd. 55 Fed. Appx. 902 (11th Cir.
2002); Saia Motor Freight Line, Inc., 333 NLRB 784,
785 (2001) (8(a)(3) violation found where employee was
disciplined for “distributing union literature”).
Here, the May 5 warning stated that Prozanski “used
the company’s e-mail system expressly for the purpose
of conducting Guild business” and that this violated the
CSP. Thus, it is clear from the warning itself that the
Respondent disciplined Prozanski for sending a unionrelated e-mail. The issue is whether Prozanski lost the
protection of the Act by using the Respondent’s e-mail
system to send the message. With respect to the May 4
e-mail, she did not. As explained above, although there
is no Section 7 right to use an employer’s e-mail system,
there is a Section 7 right to be free from discriminatory
treatment. See St. Joseph’s Hospital, supra at 95. The
Respondent acted discriminatorily in applying the CSP to
Prozanski’s May 4 e-mail. Accordingly, the May 5
warning to Prozanski for sending that e-mail violated
Section 8(a)(3) and (1).
However, we reverse the judge and dismiss the allegation that the August 22 warning violated Section 8(a)(3)
and (1). That warning was issued in response to Prozanski’s August 14 and 18 e-mails. We have found above
that the Respondent’s application of the CSP to prohibit
those e-mails did not discriminate along Section 7 lines.
Prozanski’s conduct was therefore unprotected, and the
August 22 discipline was lawful.
the union president, and she sent the August 14 and 18 e-mails from the
union office. However, we need not reach the issue of whether Lechmere applies because it would not change the result. There would still
be a violation as to the May 4 e-mail under Lechmere’s discrimination
exception. There would be no violation as to the August 14 and 18 emails because there was no discrimination, and there is no allegation
that the Union lacked reasonable alternative means of access to employees.
26
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).

D. The 8(a)(5) Allegation
The judge found that the Respondent violated Section
8(a)(5) and (1) by insisting on counterproposal 26, which
the judge found was an unlawful bargaining proposal.
We reverse. In doing so, we find it unnecessary to decide whether counterproposal 26 was unlawful on its
face. Rather, we find the evidence insufficient to show
that the Respondent insisted on the proposal.
A party violates its duty to bargain in good faith by insisting on an unlawful proposal. See, e.g., Teamsters
Local 20 (Seaway Food Town), 235 NLRB 1554, 1558
(1978); Thill, Inc., 298 NLRB 669, 672 (1990), enfd. in
relevant part 980 F.2d 1137 (7th Cir. 1992). However, a
party does not necessarily violate the Act simply by proposing or bargaining about an unlawful subject. Sheet
Metal Workers Local 91 (Schebler Co.), 294 NLRB 766,
773 (1989), enfd. in part 905 F.2d 417 (D.C. Cir. 1990).
Rather, what the Act prohibits is “the insistence, as a
condition precedent of entering into a collective bargaining agreement,” that the other party agree to an unlawful
provision. National Maritime Union (Texas Co.), 78
NLRB 971, 981–982 (1948), enfd. 175 F.2d 686 (2d Cir.
1949), cert. denied 338 U.S. 954 (1950).
Here, contrary to the dissent, we find no proof of such
insistence. The Union filed a charge alleging that the
Respondent had made an unlawful proposal in violation
of Section 8(a)(5). The charge was administratively
dismissed. Thereafter, on April 21, 2001, the Union told
the Respondent that the Union was prepared “to bargain
a proposal” and that the Union “neither accepted nor
rejected” the Respondent’s proposal. The Union also
sought clarification of the proposal, and there is no allegation that such clarification was unlawfully withheld.
Finally, there is no direct evidence that the Union asked
that the proposal be removed from the table.27 In these
circumstances, especially given the initial dismissal of
the Union’s 8(a)(5) charge and the Union’s subsequent
statements that it was prepared “to bargain a proposal”
and that it “neither accepted nor rejected” the Respondent’s proposal, we find the evidence insufficient to establish that the Respondent insisted on the proposal as a
condition of entering into an agreement, or that the proposal impeded negotiations on lawful subjects.28 Accordingly, we find no 8(a)(5) violation.
27
Contrary to the dissent, we do not find that the Union’s second filing of the charge in itself provided evidence establishing the violation
alleged in the charge.
28
Under these circumstances, we find it unnecessary to pass on
whether the proposal itself was unlawful.

REGISTER GUARD

AMENDED CONCLUSIONS OF LAW
1. Delete the words “and August 22” from the judge’s
Conclusion of Law 2.
2. Delete the judge’s Conclusion of Law 3.
ORDER
The National Labor Relations Board orders that the
Respondent, The Guard Publishing Company d/b/a The
Register-Guard, Eugene, Oregon, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily prohibiting employees from using
the Respondent’s electronic communications systems to
send union-related messages.
(b) Maintaining an overly broad rule that prohibits
employees from wearing or displaying union insignia
while working with customers.
(c) Issuing written warnings to, or otherwise discriminating against, any employee for supporting the Eugene
Newspaper Guild, CWA Local 37194 or any other labor
organization.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule prohibiting circulation department
employees from wearing or displaying union insignia
while working with customers.
(b) Within 14 days from the date of this Order, rescind
the unlawful warning issued to Suzi Prozanski on May 5,
2000, remove from its files any reference to the unlawful
warning, and within 3 days thereafter notify Prozanski in
writing that this has been done and that the warning will
not be used against her in any way.
(c) Within 14 days after service by the Region, post at
its facility in Eugene, Oregon, copies of the attached notice marked “Appendix.”29 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re29
If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

1121

spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 5, 2000.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to
comply with this Order.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
MEMBERS LIEBMAN AND WALSH, dissenting in part.
Today’s decision confirms that the NLRB has become
the “Rip Van Winkle of administrative agencies.” NLRB
v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992). Only
a Board that has been asleep for the past 20 years could
fail to recognize that e-mail has revolutionized communication both within and outside the workplace. In 2007,
one cannot reasonably contend, as the majority does, that
an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards,
telephones, and pieces of scrap paper.
National labor policy must be responsive to the enormous technological changes that are taking place in our
society. Where, as here, an employer has given employees access to e-mail for regular, routine use in their work,
we would find that banning all nonwork-related “solicitations” is presumptively unlawful absent special circumstances. No special circumstances have been shown
here. Accordingly, we dissent from the majority’s holding that the Respondent’s ban on using e-mail for “nonjob-related solicitations” was lawful.
We also dissent, in the strongest possible terms, from
the majority’s overruling of bedrock Board precedent
about the meaning of discrimination as applied to Section
8(a)(1). Under the majority’s new test, an employer does
not violate Section 8(a)(1) by allowing employees to use
an employer’s equipment or media for a broad range of
nonwork-related communications but not for Section 7
communications. We disagree, and therefore would also
affirm the judge’s finding that the Respondent violated
Section 8(a)(3) and (1) by issuing written warnings to
employee Suzy Prozanski for sending union-related emails. Finally, we dissent from the majority’s finding
that the Respondent did not insist on a bargaining proposal that codified the Respondent’s unlawful discrimi-

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

natory practice of prohibiting union-related e-mails while
allowing other nonwork-related e-mails.1
I. FACTS
A. The Respondent’s Communications Systems Policy
Since 1997, the Respondent has provided computer
and e-mail access to the vast majority of its 155 unit employees. Numerous employees testified that they spend
large portions of their workday on the computer, that
they use e-mail regularly, and that to some extent it has
replaced in-person communication.2
The principal issues in this case revolve around a
Communications Systems Policy (CSP) implemented by
the Respondent. The CSP governs employee use of the
Respondent’s communications systems, including e-mail.
It states in relevant part:
Company communication systems and the equipment
used to operate the communication system are owned
and provided by the Company to assist in conducting
the business of The Register-Guard. Communications
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. [Emphasis added.]
Except with respect to union activity, however, the
CSP was honored (and enforced) in the breach. In addition to using e-mail regularly for work-related matters,
the Respondent’s employees, with the Respondent’s
knowledge and tacit approval, also used e-mail to send
and receive nonwork-related messages. For example, the
record contains hard copies of e-mails such as baby announcements, party invitations, a request for a dog
walker, and offers of sports tickets. Employees also testified that they used e-mail for such matters as making
lunch plans, disseminating jokes, keeping in touch with
friends and relatives, and organizing a poker group.
B. The Respondent’s Discipline of Suzi Prozanski for
Sending Union-Related E-Mails
Suzi Prozanski is a unit employee and the Union’s
president. On May 4, 2000, she composed an e-mail
message on her breaktime and sent it to unit employees
from her workstation. The message, entitled “setting it
straight,” clarified facts surrounding a union rally on
1

We join the majority in rejecting the Respondent’s 10(b) defenses
and in holding that the Respondent violated Sec. 8(a)(1) by maintaining
an overly broad rule prohibiting employees from wearing or displaying
union insignia while working with the public.
2
The record in this case closed in 2001. Although not necessary, it
is safe to assume that, in the interim, employee use of computers and email has only increased.

May 1.3 On May 5, the Respondent issued Prozanski a
written warning for violating the CSP by using e-mail for
“conducting Guild business.” The warning stated in part:
“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.”
On August 14 and 18, Prozanski sent two more e-mails
to unit employees at their Register-Guard e-mail addresses. However, she composed and sent these messages from the Union’s office, off the Respondent’s
premises. The August 14 e-mail asked employees to
wear green to support the Union’s position in negotiations. The August 18 e-mail asked employees to participate in the Union’s entry in an upcoming town parade.
The Respondent issued Prozanski another written warning on August 22, stating that Prozanski had violated the
CSP by using the Respondent’s communications system
for Guild activities. The warning instructed Prozanski to
“stop using the system for dissemination of union information.”
Other than the warnings to Prozanski and a warning to
one other employee, Bill Bishop, there is no clear evidence that the CSP was enforced against any other employees. Managing Editor Dave Baker, Prozanski’s supervisor, testified that he had received numerous nonwork-related e-mails from employees but had never disciplined anyone other than Prozanski and Bishop.4
C. The Respondent’s Bargaining Proposal to Prohibit
Using the Respondent’s Communications Systems
for “Union Business”
The parties’ collective-bargaining agreement expired
on April 30, 1999. In January 1999, they began negotiating for a successor agreement. Negotiations continued
through the time of the 2001 hearing.
On October 25, 2000, at the end of a bargaining session, the Respondent presented the Union with “counterproposal 26,” which proposed the following contract
language:
The electronic communications systems are the property of the Employer and are provided for business use
only. They may not be used for union business.
There was no discussion of the proposal that day. The
parties met again the next day, but did not discuss counterproposal 26. On November 15, around the time of
their next bargaining session, the Respondent clarified in
3
The circumstances leading up to Prozanski’s message are described
more fully in the majority decision.
4
As discussed more fully in sec. II,B,1 of the majority decision,
Bishop’s discipline, too, was for a union-related e-mail. That discipline
is not alleged to be unlawful.

REGISTER GUARD

writing that counterproposal 26 “only prohibits use of the
systems for union business” (emphasis in original). The
Respondent stated that its existing CSP “will govern the
use of systems in situations ‘other than’ union business.”
On November 16, the Union responded to counterproposal 26 in writing. The response stated that, on the advice of counsel, “we will not respond to this proposal at
this time because it illegally restricts individuals’ rights
to concerted activity in the workplace.” On November
30, the Union filed an unfair labor practice charge alleging that the Respondent violated Section 8(a)(5) by proposing counterproposal 26. The Region dismissed the
charge on March 31, 2001. There is no evidence that the
parties discussed the proposal between the filing and
dismissal of the charge.
On April 9, 2001, the Union made a written request for
information regarding the scope of counterproposal 26.
The request noted that “the Guild asserted at the bargaining table that the company’s proposal sought an illegal
waiver of employee statutory rights and requested that
the employer withdraw the proposal. The company refused.” The Union then requested “immediate clarification as to the intent behind Company Counterproposal
No. 26,” including the types of union-related discussions
it would prohibit. The Union stated: “Absent clarification from the employer as to a contrary intent, the Guild
will assume that its original understanding regarding the
intent of Counterproposal No. 26 was and is correct.”
The Respondent provided a written response on April
21. The response stated in part: “It is unfortunate that
you have decided to create a legal workshop on this issue. Until your unfair labor practice charge was dismissed you refused to even discuss our proposal.” The
response further stated that, “as a general rule,” the proposal would apply to “all union business” and to all unit
employees as well as union officers. It stated that the
Respondent was not asking the union to waive employees’ rights to decertify the Union. However, the proposal
would bar an employee e-mail discussing the merits of a
proposed union dues increase. With regard to other
questions raised by the Union, the Respondent stated that
it could not “try to prejudge all possible hypothetical acts
and circumstances.” The response also referred to Prozanski’s discipline and stated that counterproposal 26
was intended to “make it clear” that its systems were not
to be used for similar communications.
That same day, the parties held a bargaining session at
which the Respondent’s intended scope of counterproposal 26 was discussed further. The Union did not accept or reject any part of the proposal or offer any counterproposal. Rather, the Union’s lead negotiator, Lance
Robertson, continued to press for additional clarification

1123

of the proposal, specifically what the Respondent meant
by “union business.” In response, the Respondent’s negotiator complained that Robertson was not bargaining,
but simply “tak[ing] notes for your appeal to the process.” He also noted the Union’s prior position, that “it
might be illegal for [the Union] to agree with the proposal.” Robertson told the Respondent that he was “here
to bargain a proposal,” but he also stated: “In order to
bargain it, we need to know how it would work.” The
Respondent’s negotiator said that he would take Robertson’s questions under advisement.
After the April 21 session, there is no evidence that the
Respondent provided the Union with any further clarification. On April 24, the Union filed a new 8(a)(5)
charge alleging that the Respondent had proposed and
“refus[ed] to withdraw” counterproposal 26. On August
13, 2001, the Region revoked its dismissal of the previous charge. The parties stipulated that counterproposal
26 has been the Respondent’s position since October 25,
2000.
II. DISCUSSION
A. Maintenance of the CSP
1. Legal framework governing Section 7 communications by employees in the workplace
The General Counsel contends that the CSP’s prohibition on “nonjob-related solicitations” is unlawfully overbroad and violates Section 8(a)(1). The judge dismissed
that allegation, and the majority affirms the dismissal.
We dissent.
The issue in an 8(a)(1) case is whether the employer’s
conduct interferes with Section 7 rights. If so, the employer must demonstrate a legitimate business reason
that outweighs the interference. See, e.g., Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001); Jeannette Corp.,
532 F.2d 916, 918 (3d Cir. 1976).
It is intuitively obvious that the workplace is “uniquely
appropriate” for Section 7 activity. NLRB v. Magnavox
Co. of Tennessee, 415 U.S. 322 (1974). In cases involving employee communications at work, the Board’s task
is to balance the employees’ Section 7 right to communicate with the employer’s right to protect its business interests. Beth Israel Hospital v. NLRB, 437 U.S. 483, 494
(1978). Limitations on communication should not be
“more restrictive than necessary” to protect the employer’s interests. Id. at 502–503.
Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945), is the seminal case balancing those interests with
respect to oral solicitation in the workplace. The employer in Republic Aviation maintained a rule prohibiting
solicitation anywhere on company property and discharged an employee for soliciting for the union during

1124

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

nonworking time. The Board adopted a presumption that
restricting oral solicitation on nonworking time was
unlawful, absent special circumstances. The Supreme
Court affirmed the Board’s finding that the employer’s
rule and its enforcement violated Section 8(a)(1). Although the solicitation occurred on the employer’s property, the Court found that an insufficient justification to
allow the employer to prohibit it. Rather, the Court endorsed the Board’s reasoning that “[i]t is not every interference with property rights that is within the Fifth
Amendment. . . . Inconvenience or even some dislocation of property rights, may be necessary in order to
safeguard the right to collective bargaining.” 324 U.S. at
802 fn. 8. Although an employer may make and enforce
“reasonable rules” covering the conduct of employees on
working time, “time outside working hours . . . is an employee’s time to use as he wishes without unreasonable
restraint, although the employee is on company property.” Id. at 803 fn. 10 (emphasis added). The Court
upheld the Board’s presumption that a rule banning solicitation during nonworking time is “an unreasonable
impediment to self-organization . . . in the absence of
evidence that special circumstances make the rule necessary in order to maintain production or discipline.” Id. at
803 fn. 10.
Thus, the presumption adopted in Republic Aviation
vindicates the right of employees to communicate in the
workplace regarding Section 7 matters, subject to the
employer’s right to maintain production and discipline.
Although the majority correctly notes that the rule in
Republic Aviation itself involved a complete ban on solicitation on the employer’s premises, the Board and
courts have long since applied Republic Aviation’s principles to lesser restrictions on employee speech. See,
e.g., Beth Israel, 437 U.S. at 492 (rule prohibiting solicitation and distribution in the hospital’s patient-care and
public areas; employer permitted those activities in employee locker rooms and restrooms); Times Publishing
Co., 240 NLRB 1158 (1979) (rule prohibiting solicitation
in “public areas” of the building), affd. 605 F.2d 847 (5th
Cir. 1979); Bankers Club, Inc., 218 NLRB 22, 27 (1975)
(rule banning solicitation in “customer areas” of the respondent’s restaurant).
The Supreme Court struck quite a different balance in
cases involving nonemployees seeking to communicate
with employees on the employer’s premises. In a case
involving distribution of union literature on an employer’s property by nonemployee union organizers, the
Court emphasized that “[a]ccommodation” between Section 7 rights and employer property rights “must be obtained with as little destruction of one as is consistent
with the maintenance of the other.” NLRB v. Babcock &

Wilcox, 351 U.S. 105, 112 (1956). The Court held that
an employer “may validly post his property against nonemployee distribution of union literature if reasonable
efforts by the union through other available channels of
communication will enable it to reach the employees
with its message and if the employer’s notice or order
does not discriminate against the union by allowing other
distribution.” Id. (emphasis added). Distinguishing Republic Aviation on the basis that it involved communications by employees, the Court emphasized that “[t]he
distinction [between employees and nonemployees] is
one of substance. No restriction may be placed on the
employees’ right to discuss self-organization among
themselves, unless the employer can demonstrate that a
restriction is necessary to maintain production or discipline. But no such obligation is owed nonemployee organizers.” Id. at 113; see also Hudgens v. NLRB, 424
U.S. 507, 521 fn. 10 (1976) (“A wholly different balance
[is] struck when the organizational activity was carried
on by employees already rightfully on the employer’s
property, since the employer’s management interests
rather than his property interests were there involved.”).
In short, the Board and courts have long protected employees’ rights to engage in Section 7 communications at
the workplace, even though the employees are on the
employer’s “property.”
2. The Respondent’s prohibition on all “nonjobrelated solicitations” violated Section 8(a)(1)
Applying the foregoing principles, the General Counsel contends that employer rules restricting employee email use must be evaluated under Republic Aviation, and
that broad bans on employee e-mail use should be presumptively unlawful. The General Counsel emphasizes
that e-mail has become the “natural gathering place” for
employees to communicate in the workplace,5 and that email sent and received on computers issued to employees
for their use is not analogous to employer “equipment”
such as bulletin boards, photocopiers, and public address
systems.
The majority, however, finds the Republic Aviation
framework inapplicable. Emphasizing the employer’s
“property” interest in its e-mail system, the majority reasons that, absent discriminatory treatment, employees
have no Section 7 right to use employer personal property such as bulletin boards, television sets, and telephones. According to the majority, Republic Aviation
ensures only that employees will not be “entirely de5
See Beth Israel, supra at 490 (noting that the employer recognized
the cafeteria as a “natural gathering place” for employees, because the
employer had used and permitted use of the cafeteria for other types of
solicitation and distribution).

REGISTER GUARD

prived” of the ability to engage in any Section 7 communications in the workplace, but otherwise does not entitle
employees to use their employer’s equipment. Here, the
majority asserts, the employees had other means of
communication available.
We disagree. Indeed, we find that the General Counsel’s approach is manifestly better suited to the role of email in the modern workplace. “The responsibility to
adapt the Act to changing patterns of industrial life is
entrusted to the Board.” NLRB v. J. Weingarten, 420
U.S. 251, 266 (1975). The majority’s approach is flawed
on several levels. First, it fails to recognize that e-mail
has revolutionized business and personal communications, and that cases involving static pieces of “equipment” such as telephones and bulletin boards are easily
distinguishable. Second, the majority’s approach is
based on an erroneous assumption that the Respondent’s
ownership of the computers gives it a “property” interest
that is sufficient on its own to exclude Section 7 e-mails.
Third, the majority’s assertion that Republic Aviation
created a “reasonable alternative means” test, even regarding employees who are already rightfully on the employer’s property, is untenable.6
E-mail has dramatically changed, and is continuing to
change, how people communicate at work. According to
a 2004 survey of 840 U.S. businesses, more than 81 percent of employees spent at least an hour on e-mail on a
typical workday; about 10 percent spent more than 4
hours.7 About 86 percent of employees send and receive
at least some nonbusiness-related e-mail at work.8 Those
percentages, no doubt, are continuing to increase. “Even
employees who report to fixed work locations every day
have seen their work environments evolve to a point
where they interact to an ever-increasing degree electronically, rather than face-to-face. The discussion by
the water cooler is in the process of being replaced by the
discussion via e-mail.”9
6

We also disagree with the majority’s characterization of our approach as “carv[ing] out an exception” to precedent. Our analysis is
hardly novel. Rather, as explained below, we apply the decades-old
principles that employees have a right to communicate in the workplace, that the Board must balance that right with the employer’s right
to protect its business interests, and that interference with employees’
Section 7 rights is unlawful unless outweighed by a legitimate business
interest. Republic Aviation, supra, 324 U.S. at 803 fn. 10; Beth Israel,
supra, 437 U.S. at 494; Jeannette Corp., supra, 532 F.2d at 918.
7
American Management Association, 2004 Workplace E-Mail and
Instant Messaging Survey (2004).
(www.amanet.org/research/pdfs/IM_2004_summary.pdf).
8
Id.
9
Martin H. Malin & Henry H. Perritt Jr., “The National Labor Relations Act in Cyberspace: Union Organizing in Electronic Workplaces,”
49 U. Kan. L. Rev. 1, 17 (Nov. 2000).

1125

Given the unique characteristics of e-mail and the way
it has transformed modern communication, it is simply
absurd to find an e-mail system analogous to a telephone,
a television set, a bulletin board, or a slip of scrap paper.
Nevertheless, that is what the majority does, relying on
the Board’s statements in prior cases that an employer
may place nondiscriminatory restrictions on the nonwork-related use of such equipment and property.10
None of those “equipment” cases, however, involved
sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges.
Rather, they involved far more limited and finite resources. For example, if a union notice is posted on a
bulletin board, the amount of space available for the employer to post its messages is reduced. See, e.g.,
Sprint/United Management Co., 326 NLRB 397, 399
(1998) (employer “may have a legitimate interest in ensuring that its postings can easily be seen and read and
that they are not obscured or diminished in prominence
by other notices posted by employees”). If an employee
is using a telephone for Section 7 or other nonworkrelated purposes, that telephone line is unavailable for
others to use. Indeed, in Churchill’s Supermarkets, 285
NLRB 138, 147 (1987), enfd. 857 F.2d 1471 (6th Cir.
1988), cert. denied 490 U.S. 1046 (1989), cited by the
majority, the judge noted that the employer’s “overriding
consideration has always been that an employee should
not tie up the phone lines” for personal use.11 Here, in
contrast, the Respondent concedes that text e-mails impose no additional cost on the Respondent. At the time
of the hearing in 2000, the Respondent’s system was
receiving as many as 4000 e-mail messages per day.
One or more employees using the e-mail system would
not preclude or interfere with simultaneous use by management or other employees. Furthermore, unlike a telephone, e-mail’s versatility permits the sender of a mes10

See sec. V,A of the majority decision.
In any event, the statements in Churchill’s, supra, and Union Carbide Corp., 259 NLRB 974, 980 (1981), enfd. in relevant part 714 F.2d
657 (6th Cir. 1983), that an employer may bar all personal use of its
telephones were dicta. In both of those cases, the Board found that the
employer had discriminatorily prohibited union-related telephone calls
while allowing other personal calls. Therefore, the Board was not
faced with the issue of whether a nondiscriminatory ban on personal
use was lawful.
The majority states that the Board “reaffirmed” Union Carbide in
Mid-Mountain Foods, 332 NLRB 229 (2000), enfd. 269 F.3d 1075
(D.C. Cir. 2001), by citing Union Carbide for the principle that employees have no statutory right to use an employer’s telephone for nonbusiness purposes. The majority in Mid-Mountain did cite Union Carbide in passing for that principle, but did not engage in any analysis
specific to the use of an employer’s telephone system. Mid-Mountain
involved the use of an employer’s television set, not its telephone system. In any event, Member Liebman dissented on that issue in MidMountain, and Member Walsh did not participate in the case.
11

1126

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

sage to reach a single recipient or multiple recipients
simultaneously; allows the recipients to glimpse the subject matter of the message before deciding whether to
read the message, delete it without reading it, or save it
for later; and, once opened, allows the recipient to reply
to the sender and/or other recipients, to engage in a realtime “conversation” with them, to forward the message
to others, or to do nothing. Neither the telephone nor any
other form of “equipment” addressed in the Board’s prior
cases shares these multidimensional characteristics.
The majority relies on the employer’s ownership of the
computer system as furnishing a “basic property right” to
regulate e-mail use. But ownership, simpliciter, does not
supply the Respondent with an absolute right to exclude
Section 7 e-mails. The Respondent has already provided
the computers and the e-mail capability to employees for
regular and routine use to communicate at work.12 Thus,
the employees are not only “rightfully” on the Respondent’s real property, the building itself; they are rightfully on (using) the computer system. See Hudgens, supra at 521 (when activity is “carried on by employees
already rightfully on the employer’s property . . . the
employer’s management interests rather than his property
interests” are involved). Moreover, an e-mail system and
the messages traveling through it are not simply “equipment”; the Respondent does not own cyberspace. See
Reno v. ACLU, 521 U.S. 844, 850 (1997) (e-mail, the
“World Wide Web,” and mail listing services “constitute
a unique medium—known to its users as ‘cyberspace’—
located in no particular geographic location but available
to anyone, anywhere in the world, with access to the
Internet”).
As the discussion above demonstrates, the existence of
a “property right” does not end the inquiry—rather, it
only begins it. The Respondent has not demonstrated
how allowing employee e-mails on Section 7 matters
interferes with its alleged property interest. To repeat,
the Respondent already allows the employees to use the
computers and e-mail system for work—and, for that
matter, for personal messages. Additional text e-mails
do not impose any additional costs on the Respondent.
And e-mail systems, unlike older communications media,
accommodate multiple, simultaneous users.
Common law involving computer “trespass,” on which
the Respondent relies, harms its case rather than helping
it. Trespass cases illustrate that the mere use of a computer system to send e-mails does not interfere with the
owner’s property interest, absent some showing of harm
12
Cf. Sprint/United Management Co., 326 NLRB 397, 399 (1998)
(drawing a distinction between a bulletin board and the locker space
that the respondent had “already ceded . . . to the personal use of the
employees to whom the lockers are assigned”).

to the system. The Restatement (Second) of Torts states
in part: “The interest of a possessor of a chattel in its
inviolability, unlike the similar interest of a possessor of
land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another’s
chattel may be liable, his conduct must affect some other
and more important interest of the possessor.” See Section 218, cmt. e. Where courts have allowed tort actions
to go forward based on trespass to a computer system,
they have relied on specific allegations of harm.13 Courts
have dismissed claims where there was no such evidence.14
As stated, the majority also reasons, based on the particular facts of Republic Aviation, that the Respondent
need not yield its “property interests” here, because employees have alternative means to communicate in the
workplace, such as oral in-person communication. In
2007, however, that train has already left the station: that
is not how the courts and the Board have applied Republic Aviation, and the availability of alternative means is
not relevant when dealing with employee-to-employee
communications. See, e.g., Babcock & Wilcox, supra at
112–113; Helton v. NLRB, 656 F.2d 883, 896–897 (D.C.
Cir. 1981) (collecting cases). The alternative-means test
applies only to activity by nonemployees on the employer’s property. See Babcock & Wilcox, supra at 112;
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The distinction between employee and nonemployee activity is
“one of substance.” Babcock & Wilcox, supra at 113. If
the absence of alternative means to communicate in the
workplace were a prerequisite to employees’ right to
engage in Section 7 activity on employer property, presumably an employer could ban oral solicitation by em13

See, e.g., Compuserve Incorporated v. Cyber Promotions, Inc.,
962 F.Supp. 1015, 1022–1023 (S.D. Ohio 1997) (injunction granted to
internet service provider against spam advertiser; handling the enormous volume of mass mailings burdened plaintiff’s equipment, and
many subscribers terminated their accounts because of the spam); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004) (use of
computer “robots” to obtain data through multiple queries of plaintiff’s
database consumed a significant portion of the system’s capacity, and if
the practice were permitted to continue, it was “highly probable” that
others would devise similar programs, leading to overtaxing of the
system).
14
See, e.g., Pearl Investments, LLC v. Standard I/O, Inc., 257
F.Supp. 326, 354 (D. Me. 2003) (even if defendant accessed the network without authorization, “there is no evidence that in doing so he
impaired its condition, quality or value”); Intel Corp. v. Hamidi, 71
P.3d 296, 304, 308 (Cal. 2003) (no liability where evidence did not
show that ex-employee’s multiple e-mails criticizing the company
“used the system in any manner in which it was not intended to function or impaired the system in any way”; “Whatever interest Intel may
have in preventing its employees from receiving disruptive communications, it is not an interest in personal property. . . .”).

REGISTER GUARD

ployees in “work areas,” or even everywhere except an
employee breakroom, without any showing of special
circumstances, because the employer would not have
“entirely deprived” employees of the right to communicate on the premises. Of course, neither the Board nor
the Supreme Court has ever placed such limits on Section 7 communication.15
For all of the foregoing reasons, we reject the majority’s conclusion that e-mail is just another piece of employer “equipment.” Where, as here, the employer has
given employees access to e-mail in the workplace for
their regular use, we would find that banning all nonwork-related “solicitations” is presumptively unlawful
absent special circumstances. This presumption recognizes employees’ rights to discuss Section 7 matters using a resource that has been made available to them for
routine workplace communication. Because the presumption is rebuttable, it also recognizes that an employer may have interests that justify a ban. For example, an employer might show that its server capacity is so
limited that even text e-mails would interfere with its
operation.16 An employer might also justify more limited
restrictions on nonwork-related e-mails—such as prohibiting large attachments or audio/video segments—by
demonstrating that such messages would interfere with
the efficient functioning of the system. In addition, rules
limiting nonwork-related e-mails to nonworking time
would be presumptively lawful, just as with oral solicitations.17
15
See, e.g., Stoddard-Quirk Mfg. Co., 138 NLRB 615, 621 (1962)
(“the right of employees to [orally] solicit on plant premises must be
afforded subject only to the restriction that it be on nonworking time”;
in contrast, distribution of flyers and other printed material may be
limited to nonworking time and nonworking areas).
16
We would, however, require specific evidence to support such an
assertion. “‛Suffer the servers’ is among the most chronically overused
and under-substantiated interests asserted by parties . . . involved in
Internet litigation. . . .” White Buffalo Ventures v. University of Texas
at Austin, 420 F.3d 366, 375 (5th Cir. 2005), cert. denied 546 U.S. 1091
(2006).
17
As with oral solicitations, however, if an employer has no rule in
place that limits nonwork-related e-mails to nonworking time, the employer must show an actual interference with production or discipline in
order to discipline employees for e-mails sent on working time. See,
e.g., Union Carbide, supra at 979.
The Respondent and various amici argue that because of the nature
of e-mail, enforcement of a “working time” restriction would be difficult. But similar difficulties exist even with oral solicitation rules. For
example, where employees self-regulate their breaks, where a supervisor is not constantly present, or where the nature of the employees’
work requires them to move around the workplace rather than stay at a
particular workstation, an employer may have difficulty enforcing an
oral solicitation rule. That difficulty, however, has never been held to
be a special circumstance justifying an outright ban on employee-toemployee communications.

1127

Here, the Respondent has shown no special circumstances for its ban on “nonjob-related solicitations,”
which on its face would prohibit even solicitations on
nonworking time, without regard to the size of the message or its attachments, or whether the message would
actually interfere with production or discipline. Accordingly, we would reverse the judge and find that the Respondent violated Section 8(a)(1) by maintaining the
portion of the CSP that prohibits employees from using
e-mail for “nonjob-related solicitations.”
B. The Respondent’s Enforcement of the CSP
Even assuming the maintenance of the CSP were lawful, the judge correctly found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing it.
The majority does not dispute that this result was correct
under Board precedent. Instead, the majority overrules
that precedent and announces a new, more limited conception of “discrimination,” based on two decisions from
the Seventh Circuit.18
As explained below, we respectfully but emphatically
disagree with the Seventh Circuit’s analysis.19 But even
assuming we did not, the majority’s application of its
new test is flawed. Accordingly, we would affirm the
judge’s conclusion that the Respondent violated Section
8(a)(1) by discriminatorily enforcing the CSP to all three
of Prozanski’s union-related e-mails.
1. The Respondent violated Section 8(a)(1)
under longstanding precedent
Section 7 grants employees the right “to engage in . . .
concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” An employer
violates Section 8(a)(1) by “interfer[ing] with, restrain[ing], or coerc[ing] employees” in the exercise of
that right. In particular, and in accord with the decadesold understanding of discrimination within the meaning
of the National Labor Relations Act, the Board has long
held that an employer violates that section by allowing
employees to use an employer’s equipment or other resources for nonwork-related purposes while prohibiting
Section 7-related uses. See, e.g., Vons Grocery Co., 320
18
Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir. 2003); Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995).
19
As the Seventh Circuit itself has observed, it is not the obligation
of the Board to “knuckle under to the first court of appeals (or the second, or even the twelfth) to rule adversely to the Board. The Supreme
Court, not this circuit . . . is the supreme arbiter of the meaning of the
laws enforced by the Board . . . .” Nielsen Lithographing Co. v. NLRB,
854 F.2d 1063, 1066 (1988). Rather, the court continued, the duty of
the Board when faced with adverse circuit precedent is “to take a
stance, to explain which decisions it agree[s] with and why, and to
explore the possibility of intermediate solutions. . . . We do not follow
stare decisis inflexibly; if the Board gives us a good reason to do so, we
shall be happy to reexamine [our decisions].”

1128

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

NLRB 53, 55 (1995) (bulletin board); Honeywell, Inc.,
262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir.
1983) (bulletin board); Union Carbide, supra at 980
(telephone). As recently as 2005, the Board applied this
principle to employee use of e-mail. See Richmond
Times-Dispatch, 346 NLRB 74, 76 (2005) (employer
violated Sec. 8(a)(1) by permitting a “wide variety of email messages unrelated to the Respondent’s business”
but prohibiting union-related messages), enfd. 225 Fed.
Appx. 144 (4th Cir. 2007), cert. denied 128 S.Ct. 492
(2007); see also E. I. du Pont de Nemours & Co., 311
NLRB 893, 919 (1993) (employer violated Sec. 8(a)(1)
by permitting the “routine use” of e-mail by employees
“to distribute a wide variety of material that has little if
any relevance to the Company’s business,” but prohibiting the use of e-mail to distribute union literature).
Here, the record makes plain that the Respondent allowed employees to use e-mail for a broad range of nonwork-related messages, including e-mails requesting employees to participate in nonwork-related events. For
example, employees and supervisors used e-mail to circulate jokes, baby announcements, and party invitations;
to offer sports tickets; to seek a dog walker; to organize a
poker group; and to make lunch plans. Yet, the Respondent enforced the CSP against Prozanski for sending
three union-related messages. This is a clear 8(a)(1) violation under longstanding precedent.
2. The majority’s standard
The majority defines “unlawful discrimination” as
“disparate treatment of activities or communications of a
similar character because of their union or other Section
7-protected status.” According to the majority, the employer “may draw a line between charitable solicitations
and non-charitable solicitations, between solicitations of
a personal nature . . . and solicitations for the commercial
sale of a product . . ., between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related
use and non-business-related use.” Applying that standard to the record here, the majority finds that the Respondent permitted nonwork-related e-mails other than
solicitations, but had never permitted solicitations to
support any group or organization. Therefore, the majority concludes, the Respondent discriminated along Section 7 lines in applying the CSP to Prozanski’s May 4 email about the union rally (which was not a solicitation),
but did not discriminate in applying the CSP to Prozanski’s August 14 and 18 e-mails (which the majority finds
were solicitations).

a. The Fleming and Guardian decisions
The majority decision is based on two Seventh Circuit
cases: Fleming Co. v. NLRB, 349 F.3d 968 (7th Cir.
2003), denying enf. to 336 NLRB 192 (2001), and
Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th
Cir. 1995), denying enf. to 313 NLRB 1275 (1994). In
Guardian, the Board found an 8(a)(1) violation where
the employer allowed personal “swap and shop” postings
advertising items for sale, but denied permission for union or other group postings, including those by the Red
Cross and an employee credit union. In Fleming, the
Board held that the employer violated Section 8(a)(1) by
removing union literature from a bulletin board. Although the employee handbook stated that the bulletin
boards were “for company business purposes only,” the
employer had allowed “a wide range of personal postings,” including wedding announcements, birthday cards,
and notices selling personal property such as cars and a
television. There was no evidence that the employer had
allowed postings for any outside clubs or organizations.
336 NLRB at 193–194. According to the credited testimony, an employee had asked permission to post a
church announcement, which the employer denied. Id. at
202–203. Thus, the employer had affirmatively excluded
at least one “organizational” posting other than union
postings.
The Seventh Circuit denied enforcement in both cases.
In Guardian, the court stated that discrimination “is a
form of inequality” and that a person claiming discrimination “must identify another case that has been treated
differently and explain why that case is ‘the same’ in the
respects the law deems relevant or permissible as
grounds of action.” See id. at 319. Reasoning that “labor law is only one of many bodies implementing an
antidiscrimination principle,” id., the court posed several
hypotheticals about whether other statutes or constitutional provisions, such as the Age Discrimination in Employment Act (ADEA) or the First Amendment, would
be violated by allowing certain personal notices to be
posted in the workplace, but not allowing postings by
political groups or senior citizens’ groups. The court
found that such practices would not be discriminatory.
The court also relied on Perry Education Assn. v. Perry
Local Educators’ Assn., 460 U.S. 37 (1983), in which the
Supreme Court held that a school system did not violate
the First Amendment by allowing the collectivebargaining representative and certain other groups, but
not a rival union, to use the school’s internal mailboxes.
Turning back to the facts of the case before it, the Guardian court noted that the employer had never allowed employees to post notices of organizational meetings. The
court acknowledged that a practice of tolerating notices

REGISTER GUARD

for anything but unions would be “antiunion discrimination by anyone’s definition,” id. at 321, but “[a] rule
banning all organizational notices (those of the Red
Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.” Id.
at 320. Accordingly, the court found that the employer’s
refusal to post union notices was not unlawful. Id. at
322.
In Fleming, the court reaffirmed Guardian. 349 F.3d
at 975. The court noted that Fleming did not enforce its
written “company use only” policy, but that “Fleming
consistently excluded any posting of group or organizational notices.” Id. at 974. Therefore, the court reasoned, “Fleming’s actual practice of permitting personal
postings, but not organizational ones, was consistently
enforced.” Id. at 975. The court then held: “Just as we
have recognized for-sale notices as a category of notices
distinct from organizational notices (which would include union postings), we can now add the category of
personal postings.” Id.20
b. The Seventh Circuit’s analysis is inappropriate
in the context of the NLRA
In analyzing whether union postings were “equal to”
“swap and shop” notices, the Guardian court relied on
case law and hypotheticals involving the First and Fourteenth Amendments and ADEA. See 49 F.3d at 320.
Thus, the court implicitly assumed that the “discriminatory” enforcement of a rule in violation of Section 8(a)(1)
is analogous to “discrimination” in other contexts. Cf.
Rebecca Hanner White, Modern Discrimination Theory
and the National Labor Relations Act, 39 Wm. & Mary
L. Rev. 99, 115 (Oct. 1997) (the Guardian court “mistakenly . . . imported Title VII’s disparate treatment approach into Section 8(a)(1)”).
The hypotheticals posed by the court, however, are not
analogous to an 8(a)(1) analysis. Unlike antidiscrimination statutes, the Act does not merely give employees the
right to be free from discrimination based on union activity. It gives them the affirmative right to engage in concerted group action for mutual benefit and protection.
Nor are employees’ Section 7 rights dependent on a
“public forum” analysis, as in Perry. Rather, in evaluating whether an employer’s conduct violates Section
8(a)(1), the Board examines whether the conduct rea20
But see J. C. Penney Co. v. NLRB, 123 F.3d 988 (7th Cir. 1997)
(cited in Fleming, supra at 974–975) (employer violated 8(a)(1) by
removing union postings from bulletin boards and union bumper stickers from work carts while allowing other postings and stickers; court
emphasized that the employer’s enforcement of its bulletin board policy
was “spotty” and rejected an argument that the stickers permitted on the
work carts were “not similar in character” to union stickers, because
they were personal).

1129

sonably tended to interfere with those affirmative Section
7 rights. If so, the burden is on the employer to demonstrate a legitimate and substantial business justification
for its conduct. Caesar’s Palace, 336 NLRB 271, 272
fn. 6 (2001); Jeannette Corp., 532 F.2d 916, 918 (3d Cir.
1976). Motive is not part of the analysis. Section 8(a)(3)
separately prohibits discrimination with the motive to
encourage or discourage union support.21
Therefore, by focusing on what types of activities are
“equal” to Section 7 activities, the majority misses the
point. In 8(a)(1) cases, the essence of the violation is not
“discrimination.” Rather, it is interference with employees’ Section 7 rights. The Board’s existing precedent on
discriminatory enforcement—that an employer violates
Section 8(a)(1) by allowing nonwork-related uses of its
equipment while prohibiting Section 7 uses—is merely
one application of Section 8(a)(1)’s core principles: that
employees have a right to engage in Section 7 activity,
and that interference with that right is unlawful unless
the employer shows a business justification that outweighs the infringement. Discrimination, when it is present, is relevant simply because it weakens or exposes as
pretextual the employer’s business justification.22
Contrary to the majority’s contention, this principle is
not at odds with NLRB v. Steelworkers (Nutone), 357
U.S. 357 (1958). In that case, the Court addressed the
“very narrow and almost abstract question” of whether
an employer violates the Act by enforcing a facially valid
no-solicitation rule against employees when the employer
has engaged in antiunion solicitation. Id. at 362. Thus,
the case involved the employer’s own communications—
through its supervisors—in a campaign against the union.
21
On that basis alone, we would have to reject the majority’s definition of 8(a)(1) discriminatory enforcement as “disparate treatment of
activities or communications of a similar character because of their
union or other Section 7-protected status” (emphasis added). This
improperly suggests that discriminatory motive is required—something
even the Seventh Circuit does not propose.
22
See, e.g., Honeywell, 722 F.2d at 407 (an employer’s decision to
allow other bulletin board postings “minimize[d] its managerial concerns”); Sprint/United Management Co., supra, 326 NLRB at 399
(1998) (where the employer had “already ceded the locker space to the
personal use of the employees to whom the lockers are assigned,” the
employer “has clearly already assumed the risk” that the presence of
other materials in the lockers could cause notices the employer places
there to be overlooked; “[t]hus, the [employer] cannot legitimately
claim that concern as a reason for refusing to allow employees to put
union literature into the lockers”); Churchill’s, 285 NLRB at 156
(“When an employer singles out union activity as its only restriction on
the private use of company phones, it is not acting to preserve use of
the phones for company business. It is interfering with union activity
. . . .”); White, supra at 111 (“Under a [S]ection 8(a)(1) balancing approach, an employer that permits solicitation by employees during
working time for nonunion activities is hard-pressed to stand on its
managerial interests in production and discipline when the working
time solicitation is on behalf of the union.”) (citations omitted).

1130

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

In declining to adopt a per se rule that an employer may
never enforce a no-solicitation rule if the employer itself
is engaging in antiunion solicitation, the Court noted that
the employer had made exceptions to its no-solicitation
rule in the past for charitable solicitation, and that there
was no evidence that the union or employees had requested such an exception for their own activities. The
Court then found no evidence that the rule diminished
the ability of the unions to carry their message to the
employees. Having previously noted that an employer’s
right to engage in noncoercive antiunion solicitation “is
protected by the so-called ‘employer free speech’ provision of Section 8(c) of the Act,”23 the Court reasoned that
where the union’s opportunities for reaching the employees with its prounion message were “at least as great as
the employer’s ability to promote the legally authorized
expression of his antiunion views, there is no basis for
invalidating [the employer’s] ‘otherwise valid’ rules.”
Id. at 364 (emphasis added). Thus, Nutone reflects the
need to consider an employer’s free speech right to express its views on unionization—a consideration not applicable when determining whether an employer has violated Section 8(a)(1) by allowing employees to communicate on some nonwork-related matters, but not on Section 7 matters. The Nutone Court never discussed the
latter issue, which was not before it. Thus, the majority
grossly overstates the scope of Nutone by contending that
the Court “rejected” the general notion that disparate
treatment of two groups “not similarly situated” undermines the employer’s business justification and therefore
violates Section 8(a)(1). No such discussion appears in
the Court’s decision, and Nutone has little, if any, relevance here.24
23
Id. at 362. Sec. 8(c) states: “The expressing of any views,
argument, or opinion, or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or be evidence of
an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.”
24
The Board decisions cited by the majority are also inapposite. In
Salmon Run Shopping Center, 348 NLRB 658 (2006), the Board found
that the employer’s exclusion of nonemployee union organizers from
the premises was discriminatorily motivated. Because Salmon Run
involved access by nonemployees, it implicated the employer’s property interests, not just its managerial interests. See id. at 658. Even
aside from that distinction, the fact that the employer in Salmon Run
had a discriminatory motive for excluding the union does not mean that
proof of such a motive is required in order to find a violation.
Enloe Medical Center, 348 NLRB 991 (2006), involved a facially
discriminatory rule (barring union literature, but nothing else, from the
breakroom), not a facially neutral rule that was discriminatorily applied. In any event, the fact that a rule will violate Sec. 8(a)(1) if it
expressly singles out union activity does not establish that an express
“singling out” is required in order to find a violation. In short, Salmon
Run and Enloe are examples of particularly clear-cut and obvious violations, but nothing in those decisions suggests that they limit the circum-

Rather, under the basic Section 8(a)(1) principles discussed above, if an employer wants to “draw a line” between permitted and prohibited e-mails—or, for that matter, between permitted and prohibited bulletin board
postings, telephone calls, or other uses of employer
equipment or media—based on whether the employees
are urging support for “groups” or “organizations,” the
employer must show some legitimate business reason for
drawing that particular line, and that business justification must outweigh the interference with Section 7 rights.
Otherwise, the employer’s rule is completely antithetical
to Section 7’s protection of concerted activity.25 The
Seventh Circuit and majority fail to engage in this analysis. In any event, the Respondent has not offered any
such justification here.
Taken to its logical extreme, the majority’s holding
that an employer need only avoid “drawing a line on a
Section 7 basis” is a license to permit almost anything
but union communications, so long as the employer does
not expressly say so.26 It is no answer to say that a rule
prohibiting all noncharitable solicitations or all solicitations for a group or organizations is not discriminatory
because it would also prohibit selling Avon or Amway
products. The Act does not protect against interference
with those activities; it does protect against interference
with Section 7 activity. Accordingly, we would adhere
to precedent, which properly reflects that principle.
stances under which a violation may be found, redefine “discrimination,” or otherwise modify the Board’s longstanding precedent.
25
For similar reasons, we reject as utterly meritless the Respondent’s
argument that, because employee Suzi Prozanski sent her e-mails in her
capacity as union president, her right of access to the computer system
must be evaluated under the Lechmere standard governing nonemployee access to an employer’s premises. Prozanski was an employee
as well as the union president. To contend that an employee who engages in activity on behalf of her union no longer has the Sec. 7 rights
of an employee, but only the “derivative” rights of a nonemployee, is
nonsensical. When employees communicate with one another about
union or other Sec. 7 matters, whether or not they act “for” their union,
they are exercising their own, nonderivative Sec. 7 rights

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Anlrb%3Ab42e699466c447bd. Public record. Not legal advice.