General Counsel Memo on Register-Guard

General Counsel Meisburg has just released a memo on pending Register-Guard cases.  The memo describes five cases that raise potential Register-Guard issues and, per the GC's order, were submitted to the Division of Advice to provide a consistent approach to the Board's new rules in this area.  The GC concludes his memo by stating that:

The post Register Guard cases submitted to Advice thus far have given us the opportunity to apply those principles set forth in Register Guard in a variety of factual settings. We have concluded that if an employer permits a union representing its employees to use the employer’s e-mail system, it can place reasonable limits on that use. We have also seen cases where an otherwise valid rule was promulgated for anti-union reasons, a situation that Register Guard specifically found to be unlawful. Finally, we have dealt with a case that did not involve solicitation, but rather, a direct communication with management seeking improvement in working conditions. We are continuing to bring Register Guard cases to Advice to assure a consistent approach to our casehandling.

The memo provides a much more detailed analysis of the five cases, so it's worth checking out (although one small quibble is that the cases weren't named). 

I've made little secret of my displeasure with Register-Guard.  However, given the existence of the decision, the GC's approach in these cases seems reasonable.  In particular, the GC issued discrimination complaints in a couple of cases--one alleging that the employer's application of its solicitation rule was discriminatory because it allowed commercial solicitations (for example, Avon, homemade goods, school fundraising, and contributions to families) and another alleging that the employer evidenced an intent to discriminate against the content of union emails.  The discrimination issue in Register-Guard has the most far-reaching potential, but if the Board goes along with the GC in cases like these (and there were two others alleging discrimination), things may be slightly less horrible.  Indeed, of these five cases submitted to the Office of Advice, the GC issued complaints in four.  Obviously, the sample size is small and the regions are likely filtering out more cases that clearly fail under Register-Guard, but this memo seems to indicate that the GC is still making an attempt to hold employers to what few limits they have.  Whether the Board goes along is a different question.

-JH