Guard Publishing Co. v. N.L.R.B.
| Decision Date | 07 July 2009 |
| Docket Number | No. 08-1006.,No. 08-1013.,No. 07-1528.,07-1528.,08-1006.,08-1013. |
| Citation | 571 F.3d 53 |
| Parties | GUARD PUBLISHING COMPANY, doing Business as the Register-Guard, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. Eugene Newspaper Guild, CWA Local 37194, AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
L. Michael Zinser argued the cause for petitioner Guard Publishing Company. With him on the briefs was Glenn E. Plosa.
James B. Coppess argued the cause for petitioner Eugene Newspaper Guild, CWA Local 37194, AFL-CIO. With him on the briefs were Barbara Camens and Laurence Gold.
Heather S. Beard, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Ronald Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Meredith L. Jason, Supervisory Attorney.
L. Michael Zinser and Glenn E. Plosa were on the brief for intervenor Guard Publishing Company in support of respondent.
James B. Coppess, Barbara Camens, and Laurence Gold were on the brief for intervenor Eugene Newspaper Guild, CWA Local 37194, AFL-CIO in support of respondent.
Andrew M. Kramer, Shay Dvoretzky, and Zachary S. Price were on the brief for amici curiae Chamber of Commerce of the United States of America, et al. in support of respondent.
Before: SENTELLE, Chief Judge, and GARLAND and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
The Register-Guard disciplined Suzi Prozanski, a copy editor and union president, for sending three union-related e-mails to her fellow employees. It also directed Ronald Kangail, a circulation department district manager and union representative, not to wear a union armband or display a union placard in public. The National Labor Relations Board (NLRB) found that the company committed unfair labor practices by enforcing its e-mail policy with respect to one of Prozanski's three e-mails in a manner that discriminated against the union, and by prohibiting Kangail's display of union insignia. Because these findings were supported by substantial evidence, we deny the company's petition for review and grant the Board's cross-application for enforcement. However, because the same cannot be said for the Board's determination that the company acted lawfully in disciplining Prozanski for the other e-mails, we grant the union's petition for review and remand that matter for further proceedings.
Guard Publishing Company publishes the Register-Guard, a daily newspaper in the Eugene, Oregon area. In 1996, the Register-Guard installed a new computer system and adopted a Communication Systems Policy (CSP) to govern use of communication systems, including e-mail. The CSP provided, inter alia, that:
Company communication systems and the equipment used to operate the communication systems are owned and provided by the Company to assist in conducting the business of The Register-Guard. Communication systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.
While Register-Guard employees used "e-mail regularly for work-related matters," the Board found that:
Throughout the relevant time period, the [Register-Guard] was aware that employees also used e-mail to send and receive personal messages. The record contains evidence of e-mails such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.
Guard Publ'g Co., 351 N.L.R.B. 1110, 1111 (2007). Employees "sent and received e-mail ... regarding parties, jokes, breaks, community events, sporting events, births, meeting for lunch, and poker games," and did so "without reprimand." Id. at 1134 (ALJ Op.). Managing editor Dave Baker "admitted that he has received personal e-mail from ... employees and has not disciplined them." Id. Among other nonwork-related e-mails, Baker himself sent at least two e-mails seeking volunteers for the newspaper's annual United Way campaign.
Approximately 150 of the company's employees constitute a unit represented by the Eugene Newspaper Guild, CWA Local 37194, AFL-CIO. In May and August of 2000, the company sent union president Suzi Prozanski, a copy editor in the newspaper's features department, written disciplinary warnings for alleged violations of the CSP. The warnings pertained to one e-mail Prozanski sent in May from her workstation (but composed on her break), and two e-mails she sent in August from a computer at the union's office. Prozanski sent all three to numerous unit employees at their Register-Guard e-mail addresses.
The first e-mail, sent May 4, 2000, was entitled "setting it straight" and concerned a union rally held the previous Monday afternoon, May 1. Before that rally, managing editor Baker had e-mailed employees advising them to leave work early because of a police warning that anarchists might attend the rally. Bill Bishop, an employee and union member, then e-mailed a reply to Baker and to other employees, attaching an e-mail from the police to the union indicating that it was the company that had warned the police about anarchists. The ensuing rally was incident-free. Prozanski's May 4 e-mail advised employees that the union had "discovered that some of the information given to you" in Bishop's e-mail "was incomplete." J.A. 129. Although the police e-mail that Bishop had attached "clearly stated the company had called the police," she explained that:
What we didn't know then is that police had in fact contacted the [Register-Guard] on Sunday, the day before the rally.... We regret that many were misled. The internal police e-mail told only half the story — that the company did contact the police on Monday. But we didn't have all the information about the police contacting the company a day earlier.
The next day, Baker sent Prozanski a disciplinary warning. It stated: Id. at 130. The notice went on to express concern that the e-mail had been posted on the union bulletin board. Id.
In August 2000, Prozanski sent employees two more e-mails. The first, sent August 14 and entitled "Go Green," reminded employees to "WEAR GREEN on Tuesday" to "show unity" regarding the union's position in contract negotiations. Id. at 127. The second, sent August 18 and entitled "Let's parade," asked for volunteers to help with the union's "fun, entertaining, PRIZE-winning entry in the Eugene Celebration Parade." Id. at 128.
On August 22, Cynthia Walden, the Register-Guard's director of human relations, sent Prozanski another disciplinary warning, stating that Prozanski had violated the Communication Systems Policy by using the system "for dissemination of union information." Id. at 132. And it reminded her that "[i]n May you ... told Dave Baker that you would refrain from using the Company's systems for union/personal business." Id. On September 5, the union filed a charge with the NLRB alleging that the Company committed an unfair labor practice by sending the August 22 disciplinary warning.
Two months later, an additional point of contention arose between the union and the Register-Guard, this time involving Ronald Kangail. Kangail, a district manager in the circulation department, interacted with independent contractors who served as newspaper carriers and on occasion with subscribers. In November, Kangail began to wear a green armband, indicative of union support, when he was in the field. He also displayed in his car an 8-1/2 by 11-inch green placard promoting support for the union. Id. at 137. Zone Manager Steve Hunt, Kangail's supervisor, told Kangail to remove the armband from his arm and the placard from his car when in public. Kangail complied. Although the Register-Guard had no written policy concerning the display of insignia or signs at work, company officials later testified that there was an unwritten policy applicable when dealing with the public. The officials' descriptions of the content of that policy differed. One manager said the policy was that "employees could not wear or exhibit indicia that are controversial in nature, or partisan or political, or ... otherwise represent the company in a negative context." Guard, 351 N.L.R.B. at 1134 (ALJ Op.). Another said the rule was that employees were "not to wear anything that is not appropriate to the business." Id. On May 14, 2001, the union filed an additional unfair labor practice charge based on Hunt's direction that Kangail not display the armband and placard.
Based on the charges filed by the union, the NLRB's General Counsel filed complaints alleging, inter alia, that the Register-Guard violated sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) & (3),1 by: (1) "maintaining, promulgating, and enforcing an overly broad no-solicitation policy"; (2) "discriminatorily enforcing its no-solicitation policy" by issuing disciplinary warnings to Suzi Prozanski on May 5 and August 22, 2000; and (3) "promulgating and maintaining an insignia policy prohibiting display of union insignia or signs." Guard, 351 N.L.R.B. at 1133 (ALJ Op.). An Administrative Law Judge (ALJ) found that the Register-Guard did not violate the NLRA merely by maintaining the Communication Systems Policy, holding that an employer may lawfully limit employee use of the employer's equipment or...
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