1 Solicitation Is an system – employees’ “work area” in which ees may discuss unionization? – employer equipment that employer may control for its own use?

Policy “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.” 2

Chronology May 4, corrected an earlier sent by management regarding possible disturbances at a union rally August 14, asked them to wear green to work in a show of solidarity August 18, asked to volunteer to participate in a parade August 22, 2000 discipline for August messages reference May message September 5, 2000 UFLP charge 3

Compare Description of Facts Board Decision “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 to send and receive personal messages. The record contains evidence of s 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.” (183 LRRM 1113 at 1115) Court Decision “While Register-Guard employees used “ regularly for work-related matters,” the Board found that: ‘Throughout the relevant time period, the [Register- Guard] was aware that employees also used to send and receive personal messages. The record contains evidence of s such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking.’... Employees ‘sent and received … regarding parties, jokes, breaks, community events, sporting events, births, meeting for lunch, and poker games,” and did so’ without reprimand.”... Managing editor Dave Baker “admitted that he has received personal from … employees and has not disciplined them.” Id. Among other nonwork-related s, Baker himself sent at least two s seeking volunteers for the newspaper's annual United Way campaign.” 4

Two Questions – First Question Question. Is the policy itself unlawful under the NLRA? Does the policy constitute a violation of Section 8(a)(1) because it interferes with, restrains or coerces employees? Answer - No. – Employees have no Section 7 to use an employer’s property for organizing and solicitation – Republic Aviation applies to “face-to-face” communication – Decision on policy not challenged at Court of Appeals level and therefore not considered 5

Two Questions – Second Question Question: Was the policy applied in a to union activity such that its application violated 8(a)(1) and 8(a)(3) Answer: Yes 6

May 4 “Correction” Board and Court: – did not constitute solicitation and therefore was not covered by the policy – Policy was discriminatorily applied against non- solicitation union-related as it had never before been used to prohibit non-solicitation-type messages 7

August 14 and August 18 Message These s were solicitation but enforcement was discriminatory – Employer had permitted messages for other kinds of solicitations (sports tickets) – Board’s distinction between soliciting for organizations and soliciting for other purposes was not relied on by employer Policy did not make distinctions among purposes of solicitation – “a post hoc invention” 8

Arm Band and Union Insignia Generally may not be prohibited unless special circumstances are shown – Safety – Product Protection – Employer Image General customer contact not sufficient to overcome general prohibition Burden on employer and not satisfied – Limited customer contact so no image issue 9