Guard Publishing Co. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2008 Decided July 7, 2009

No. 07-1528

GUARD PUBLISHING COMPANY, DOING BUSINESS AS THE
REGISTER-GUARD,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

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

Consolidated with 08-1006, 08-1013

On Petitions for Review and
Cross-Application for Enforcement
of an Order of the National Labor Relations Board

L. Michael Zinser argued the cause for petitioner Guard
Publishing Company. With him on the briefs was Glenn E.
Plosa.

James B. Coppess argued the cause for petitioner Eugene
 2

Newspaper Guild, CWA Local 37194, AFL-CIO. With him on
the briefs were Barbara Camens and Laurence Gold.

Heather S. Beard, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Ronald Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Meredith L. Jason, Supervisory Attorney.

L. Michael Zinser and Glenn E. Plosa were on the brief for
intervenor Guard Publishing Company in support of respondent.

James B. Coppess, Barbara Camens, and Laurence Gold
were on the brief for intervenor Eugene Newspaper Guild, CWA
Local 37194, AFL-CIO in support of respondent.

Andrew M. Kramer, Shay Dvoretzky, and Zachary S. Price
were on the brief for amici curiae Chamber of Commerce of the
United States of America, et al. in support of respondent.

Before: SENTELLE, Chief Judge, and GARLAND and
GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The Register-Guard disciplined
Suzi Prozanski, a copy editor and union president, for sending
three union-related e-mails to her fellow employees. It also
directed Ronald Kangail, a circulation department district
manager and union representative, not to wear a union armband
or display a union placard in public. The National Labor
Relations Board (NLRB) found that the company committed
unfair labor practices by enforcing its e-mail policy with respect
to one of Prozanski’s three e-mails in a manner that
discriminated against the union, and by prohibiting Kangail’s
 3

display of union insignia. Because these findings were
supported by substantial evidence, we deny the company’s
petition for review and grant the Board’s cross-application for
enforcement. However, because the same cannot be said for the
Board’s determination that the company acted lawfully in
disciplining Prozanski for the other e-mails, we grant the union’s
petition for review and remand that matter for further
proceedings.

I

Guard Publishing Company publishes the Register-Guard,
a daily newspaper in the Eugene, Oregon area. In 1996, the
Register-Guard installed a new computer system and adopted a
Communication Systems Policy (CSP) to govern use of
communication systems, including e-mail. The CSP provided,
inter alia, that:

Company communication systems and the equipment
used to operate the communication systems are owned
and provided by the Company to assist in conducting
the business of The Register-Guard. Communication
systems are not to be used to solicit or proselytize for
commercial ventures, religious or political causes,
outside organizations, or other non-job-related
solicitations.

J.A. 123.

While Register-Guard employees used “e-mail regularly for
work-related matters,” the Board found that:

Throughout the relevant time period, the [Register-
Guard] was aware that employees also used e-mail to
send and receive personal messages. The record
 4

contains evidence of e-mails such as baby
announcements, party invitations, and the occasional
offer of sports tickets or request for services such as
dog walking.

Guard Publ’g Co., 351 N.L.R.B. 1110, 1111 (2007). Employees
“sent and received e-mail . . . regarding parties, jokes, breaks,
community events, sporting events, births, meeting for lunch,
and poker games,” and did so “without reprimand.” Id. at 1134
(ALJ Op.). Managing editor Dave Baker “admitted that he has
received personal e-mail from . . . employees and has not
disciplined them.” Id. Among other nonwork-related e-mails,
Baker himself sent at least two e-mails seeking volunteers for
the newspaper’s annual United Way campaign.

Approximately 150 of the company’s employees constitute
a unit represented by the Eugene Newspaper Guild, CWA Local
37194, AFL-CIO. In May and August of 2000, the company
sent union president Suzi Prozanski, a copy editor in the
newspaper’s features department, written disciplinary warnings
for alleged violations of the CSP. The warnings pertained to one
e-mail Prozanski sent in May from her workstation (but
composed on her break), and two e-mails she sent in August
from a computer at the union’s office. Prozanski sent all three
to numerous unit employees at their Register-Guard e-mail
addresses.

The first e-mail, sent May 4, 2000, was entitled “setting it
straight” and concerned a union rally held the previous Monday
afternoon, May 1. Before that rally, managing editor Baker had
e-mailed employees advising them to leave work early because
of a police warning that anarchists might attend the rally. Bill
Bishop, an employee and union member, then e-mailed a reply
to Baker and to other employees, attaching an e-mail from the
police to the union indicating that it was the company that had
 5

warned the police about anarchists. The ensuing rally was
incident-free. Prozanski’s May 4 e-mail advised employees that
the union had “discovered that some of the information given to
you” in Bishop’s e-mail “was incomplete.” J.A. 129. Although
the police e-mail that Bishop had attached “clearly stated the
company had called the police,” she explained that:

What we didn’t know then is that police had in fact
contacted the [Register-Guard] on Sunday, the day
before the rally. . . . We regret that many were misled.
The internal police e-mail told only half the story --
that the company did contact the police on Monday.
But we didn’t have all the information about the police
contacting the company a day earlier.

Id.

The next day, Baker sent Prozanski a disciplinary warning.
It stated: “[Y]ou used the company’s e-mail system expressly
for the purpose of conducting Guild business. As you know, this
is a violation of the company’s Communication Systems
policy.” Id. at 130. The notice went on to express concern that
the e-mail had been posted on the union bulletin board.
“Employees who see that e-mail message are likely to assume
that it’s OK to use the company’s e-mail for purposes other than
company business. And, of course, that’s not true.” Id.

In August 2000, Prozanski sent employees two more
e-mails. The first, sent August 14 and entitled “Go Green,”
reminded employees to “WEAR GREEN on Tuesday” to “show
unity” regarding the union’s position in contract negotiations.
Id. at 127. The second, sent August 18 and entitled “Let’s
parade,” asked for volunteers to help with the union’s “fun,
entertaining, PRIZE-winning entry in the Eugene Celebration
Parade.” Id. at 128.
 6

On August 22, Cynthia Walden, the Register-Guard’s
director of human relations, sent Prozanski another disciplinary
warning, stating that Prozanski had violated the Communication
Systems Policy by using the system “for dissemination of union
information.” Id. at 132. And it reminded her that “[i]n May
you . . . told Dave Baker that you would refrain from using the
Company’s systems for union/personal business.” Id. On
September 5, the union filed a charge with the NLRB alleging
that the Company committed an unfair labor practice by sending
the August 22 disciplinary warning.

Two months later, an additional point of contention arose
between the union and the Register-Guard, this time involving
Ronald Kangail. Kangail, a district manager in the circulation
department, interacted with independent contractors who served
as newspaper carriers and on occasion with subscribers. In
November, Kangail began to wear a green armband, indicative
of union support, when he was in the field. He also displayed in
his car an 8-1/2 by 11-inch green placard promoting support for
the union. Id. at 137. Zone Manager Steve Hunt, Kangail’s
supervisor, told Kangail to remove the armband from his arm
and the placard from his car when in public. Kangail complied.
Although the Register-Guard had no written policy concerning
the display of insignia or signs at work, company officials later
testified that there was an unwritten policy applicable when
dealing with the public. The officials’ descriptions of the
content of that policy differed. One manager said the policy was
that “employees could not wear or exhibit indicia that are
controversial in nature, or partisan or political, or . . . otherwise
represent the company in a negative context.” Guard, 351
N.L.R.B. at 1134 (ALJ Op.). Another said the rule was that
employees were “not to wear anything that is not appropriate to
the business.” Id. On May 14, 2001, the union filed an
additional unfair labor practice charge based on Hunt’s direction
that Kangail not display the armband and placard.
 7

Based on the charges filed by the union, the NLRB’s
General Counsel filed complaints alleging, inter alia, that the
Register-Guard violated sections 8(a)(1) and (3) of the National
Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) & (3),1 by:
(1) “maintaining, promulgating, and enforcing an overly broad
no-solicitation policy”; (2) “discriminatorily enforcing its no-
solicitation policy” by issuing disciplinary warnings to Suzi
Prozanski on May 5 and August 22, 2000; and (3)
“promulgating and maintaining an insignia policy prohibiting
display of union insignia or signs.” Guard, 351 N.L.R.B. at
1133 (ALJ Op.). An Administrative Law Judge (ALJ) found
that the Register-Guard did not violate the NLRA merely by
maintaining the Communication Systems Policy, holding that an
employer may lawfully limit employee use of the employer’s
equipment or media. But the ALJ found that the Register-Guard
did violate the NLRA by discriminatorily enforcing the policy
to prohibit union-related e-mails while allowing a variety of
nonwork-related e-mails. In particular, he found that the
Register-Guard committed unfair labor practices by disciplining
Prozanski for both the May and August e-mails. And he further
found that the company violated the NLRA by maintaining and

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

It shall be an unfair labor practice for an employer --
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section [7] of
this title;
...
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization . . . .

29 U.S.C. § 158(a)(1) & (3); see infra note 2 (setting forth the text of
section 7, 29 U.S.C. § 157).
 8

enforcing against Kangail an overly broad rule prohibiting
employees from wearing or displaying union insignia while
working with the public.

On review, the Board agreed with the ALJ that the Register-
Guard did not violate the NLRA merely by maintaining a
Communication Systems Policy that barred employees from
using the company’s e-mail system for all nonjob-related
solicitations. “Consistent with a long line of cases governing
employee use of employer-owned equipment,” the Board held,
“the employees here had no statutory right to use the [Register-
Guard’s] e-mail system for Section 7 matters.” Id. at 1114.
“Accordingly,” it held, the Register-Guard “may lawfully bar
employees’ nonwork-related use of its e-mail system, unless [the
Register-Guard] acts in a manner that discriminates against
Section 7 activity.” Id. at 1116.2

As the CSP did not discriminate against section 7 activity
on its face, the Board proceeded to examine whether the
company violated section 8(a)(1) “by discriminatorily enforcing
the CSP to prohibit Prozanski’s union-related e-mails while
allowing other nonwork-related e-mails.” Id. The Board agreed
with the ALJ that the Register-Guard discriminatorily enforced
the CSP with respect to the May 4 e-mail. The CSP, the Board
noted, “prohibited only ‘nonjob-related solicitations,’ not all
non-job-related communications,” and the May 4 e-mail “was
not a solicitation.” Id. at 1119. “The only difference between
Prozanski’s May e-mail and the e-mails permitted by the
[Register-Guard] is that Prozanski’s e-mail was union-related.”
Id. The Board disagreed, however, with the ALJ’s finding
regarding the August e-mails. Those e-mails did constitute

2
Section 7 of the NLRA provides that “[e]mployees shall have the
right to self-organization, [and] to form, join, or assist labor
organizations . . . .” 29 U.S.C. § 157.
 9

solicitations, the Board said, and although “[t]he evidence shows
that the [Register-Guard] tolerated personal employee e-mail
messages,” including solicitations for “sports tickets or other
similar personal items,” there was “no evidence that the
[Register-Guard] permitted employees to use e-mail to solicit
other employees to support any group or organization.” Id.
(emphasis added). “Thus, . . . enforcement of the CSP with
respect to the August 14 and 18 e-mails did not discriminate
along Section 7 lines and therefore did not violate Section
8(a)(1).” Id.3

Finally, the Board upheld the ALJ’s conclusion that the
Register-Guard “violated Sec. 8(a)(1) by maintaining an overly
broad rule prohibiting employees from wearing or displaying
union insignia while working with the public,” and by enforcing
that rule against Kangail. Id. at 1110 n.2.

Both the union and the company now petition for review.
The union states that, although it believes the company violated
section 8(a)(1) by maintaining a policy that prohibited e-mail
use for all “non-job-related solicitations,” it does not seek
review of the Board’s ruling to the contrary. See Union Br. 12-
13. Instead, the union contends only that the company enforced
its e-mail policy -- with respect to both the May and August
e-mails -- in a manner that discriminated against the union. For
its part, the company contends that the Board erred in finding
that it discriminated as to Prozanski’s May e-mail, but was
correct in finding no discrimination with respect to those she

3
Members Liebman and Walsh dissented in part. They would
have found that “banning all nonwork-related ‘solicitations’ is
presumptively unlawful absent special circumstances,” Guard, 351
N.L.R.B. at 1121, and that even if it were not, the Register-Guard
enforced the CSP in a discriminatory manner as to the August as well
as the May e-mails, id. at 1131.
 10

sent in August. The company also challenges the Board’s
determination that it committed an unfair labor practice by
directing Kangail to cease displaying union insignia in public.

We assess the NLRB’s decision under familiar standards:
“We review the Board’s factual conclusions for substantial
evidence, defer to NLRB rules if they are rational and consistent
with the Act, and uphold the Board’s application of law to facts
unless arbitrary or otherwise erroneous.” Harter Tomato Prods.
Co. v. NLRB, 133 F.3d 934, 937 (D.C. Cir. 1998) (internal
quotation marks and citations omitted). We address the e-mail
issue in Part II and the insignia issue in Part III.

II

As noted above, for purposes of this case the union does not
challenge the lawfulness of a company policy that bars union
access to e-mail on a neutral basis. We therefore have no
occasion to consider that issue, and we move directly to the
question of whether the Register-Guard selectively enforced its
e-mail policy against the union. “The law is clear that a valid
no-solicitation rule applied in a discriminatory manner or
maintained for discriminatory reasons may not be enforced
against union solicitation.” Rest. Corp. of Am. v. NLRB, 827
F.2d 799, 804-05 (D.C. Cir. 1987); see ITT Indus., Inc. v. NLRB,
251 F.3d 995, 1006 (D.C. Cir. 2001).

1. With respect to the May e-mail, we conclude that
substantial evidence supports the determination that the
company’s decision to discipline Prozanski was unlawfully
discriminatory. Enforcement of the Communication Systems
Policy against Prozanski’s May missive could not constitute a
 11

neutral application of that policy because, simply put, the CSP
did not cover such an e-mail.4

The Register-Guard’s policy provided that its
communication systems were not to be used “to solicit or
proselytize for commercial ventures, religious or political
causes, outside organizations, or other non-job-related
solicitations.” J.A. 123. Yet as the Board found, the May 4
e-mail “was not a solicitation. It did not call for action; it
simply clarified the facts surrounding the Union’s rally the day
before.” Guard, 351 N.L.R.B. at 1119. The dictionary defines
to “solicit” as “[t]o try to obtain by entreaty, persuasion, or

4
The Register-Guard objects that the union did not file a timely
charge based on the discipline for the May e-mail, and that a
complaint based on that discipline was therefore barred by section
10(b) of the NLRA, 29 U.S.C. § 160(b). But the NLRB has long
permitted prosecution of any alleged violation that is “‘closely related’
to the allegations in a timely filed charge,” Ross Stores, Inc. v. NLRB,
235 F.3d 669, 672 (D.C. Cir. 2001); see Nickles Bakery of Ind., Inc.,
296 N.L.R.B. 927, 928 (1989), and the ALJ found that the May
allegation was “closely related” to the August allegation, which was
timely charged, Guard, 351 N.L.R.B. at 1133 n.1 (ALJ Op.).
Although the company has continued to object -- before both the
Board and this court -- to the absence of a timely filed charge for the
May allegation, it has never objected to the ALJ’s finding that the May
allegation may be prosecuted notwithstanding the absence of a timely
filed charge because it comes within the “closely related” exception.
Because the company did not object to the ALJ’s finding before the
Board, see Resp’t’s Exceptions to the Decision of the Administrative
Law Judge ¶¶ 44-45 (S.A. 185), we are without jurisdiction to
consider that objection now. See 29 U.S.C. § 160(e). Moreover,
because the company also failed to raise that objection in its briefs
before this court, see Oral Arg. Recording at 3:58-4:15, 41:20-41:30
(company’s concession that it did not do so), it has twice waived any
argument it might have had. See Ark Las Vegas Rest. Corp. v. NLRB,
334 F.3d 99, 108 n.4 (D.C. Cir. 2003).
 12

formal application,” WEBSTER’S II NEW COLLEGE DICTIONARY
1050 (1999), and to “proselytize” as to try “[t]o convert from
one faith or belief to another,” id. at 888. Stretching these terms
to cover what was nothing more than an attempt to correct a
factual error in an earlier e-mail is simply more distortion than
the words can bear.

The Board further found that the Register-Guard “permitted
a variety of nonwork-related e-mails other than solicitations.
Indeed, the CSP itself prohibited only ‘nonjob-related
solicitations,’ not all non-job-related communications. The only
difference between Prozanski’s May e-mail and the e-mails
permitted by the [Register-Guard] is that Prozanski’s e-mail was
union-related.” Guard, 351 N.L.R.B. at 1119. Accordingly, the
Board concluded that “the [Register-Guard’s] enforcement of
the CSP with respect to the May 4 e-mail discriminated along
Section 7 lines and therefore violated Section 8(a)(1).” Id. That
conclusion was certainly reasonable. In fact, in disciplining
Prozanski for sending the May e-mail, the company did not even
contend that the e-mail constituted solicitation or
proselytization. Rather, Baker’s May 5 disciplinary notice
admonished her for “us[ing] the company’s e-mail system
expressly for the purpose of conducting Guild business.” Id. at
1120 (quoting the May 5 memorandum, reproduced at J.A. 130).
As the Board noted, it thus was “clear from the warning itself
that the [Register-Guard] disciplined Prozanski for sending a
union-related e-mail.” Id.

2. We further conclude that substantial evidence does not
support the Board’s determination that the Register-Guard acted
lawfully in disciplining Prozanski for the August e-mails. We
agree with the Board that those e-mails did constitute
solicitations, as they “called for employees to take action in
support of the Union.” Id. at 1119. But the Board did not find
that the company disciplined Prozanski merely because the
 13

e-mails were solicitations, as such discipline would have been
inconsistent with the Register-Guard’s practice of permitting
other kinds of personal solicitations. As the Board noted, “[t]he
evidence shows that the [Register-Guard] tolerated personal
employee e-mail messages,” including solicitations for “sports
tickets or other similar personal items.” Id. Rather, the Board
found that it was not discriminatory to discipline Prozanski for
the August e-mails because they were solicitations on behalf of
an organization rather than an individual, and there was “no
evidence that the [Register-Guard] permitted employees to use
e-mail to solicit other employees to support any group or
organization.” Id. (emphasis added).

Whatever the propriety of drawing a line barring access
based on organizational status, the problem with relying on that
rationale here is that it is a post hoc invention; the company
never invoked it before the General Counsel filed his complaint.
The Communication Systems Policy made no distinction
between solicitations for groups and for individuals, mentioning
solicitations for “outside organizations” as just one example of
the forbidden category of all “non-job-related solicitations.”
J.A. 123. Indeed, the Board’s own description of the CSP
acknowledged as much. Guard, 351 N.L.R.B. at 1110 (stating
that the company “maintain[ed] a policy prohibiting the use of
e-mail for all ‘non-job-related solicitations’” (emphasis added));
see Rest. Corp., 827 F.2d at 807 n.4 (noting that a company, by
imposing an absolute bar on solicitations, “itself determine[s]
what types of solicitation” it deems unacceptable). Equally
significant, the Company’s August disciplinary warning, which
explained the rationale for disciplining Prozanski, did not invoke
the organization-versus-individual line drawn by the Board. To
the contrary, it told her to “refrain from using the Company’s
systems for union/personal business,” J.A. 132 (emphasis
added) -- the reference to “personal” making it clear that the
offense did not depend on whether an organization was
 14

involved. In the same vein, the May disciplinary notice did not
draw an organizational line either, but rather admonished
Prozanski that it was impermissible “to use the company’s
e-mail for purposes other than company business.” Id. at 130

In short, neither the company’s written policy nor its
express enforcement rationales relied on an organizational
justification. The August memo gave only one explanation for
disciplining Prozanski: she had “use[d] the system for
dissemination of union information.” Id. at 132. Thus, the
Board’s observation concerning the May disciplinary warning --
that it was “clear from the warning itself that the [Register-
Guard] disciplined Prozanski for sending a union-related
e-mail,” Guard, 351 N.L.R.B. at 1120 -- was equally true of the
August warning. Indeed, in practice the only employee e-mails
that had ever led to discipline were the union-related e-mails at
issue here. See Guard, 351 N.L.R.B. at 1137 (ALJ Op.)
(“[T]here was no enforcement of the communications policy on
nonbusiness use, other than union use, of communications
equipment.”); J.A. 52 (testimony of Dave Baker); id. at 167
(memorandum from Cynthia Walden to Bill Bishop). On this
record, substantial evidence does not support the Board’s
determination that Prozanski was disciplined for a reason other
than that she sent a union-related e-mail. See St. Margaret
Mercy Healthcare Ctrs. v. NLRB, 519 F.3d 373, 375-76 (7th Cir.
2008) (“The hospital’s rule forbids solicitations in patient care
areas, period, yet the only solicitations that have ever drawn a
rebuke from management are . . . those in support of union
activities. . . . The singling out of the union-supporting nurse for
rebuke was discrimination against union activities.”).

III

Finally, we consider the Register-Guard’s challenge to the
Board’s determination that it committed an unfair labor practice
 15

by directing circulation district manager Ronald Kangail to stop
wearing a union armband and displaying a union placard when
working with the public.

“The right to wear union buttons or other insignia while at
work is generally protected by [Section 7 of] the NLRA.”
Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 946 (D.C. Cir. 1999)
(citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03
& n.7 (1945)). “In the absence of special circumstances, an
employer’s prohibition against wearing such insignia violates
section 8(a)(1).” Id.; see Waterbury Hotel Mgmt., LLC v. NLRB,
314 F.3d 645, 655 (D.C. Cir. 2003); Mack’s Supermarkets, Inc.,
288 N.L.R.B. 1082, 1098 (1988). When it bans the wearing of
union insignia, the employer bears the burden of overcoming the
presumption of an unfair labor practice by demonstrating that
special circumstances exist. See, e.g., Wal-Mart Stores, Inc. v.
NLRB, 400 F.3d 1093, 1098 (8th Cir. 2005); NLRB v. Malta
Constr. Co., 806 F.2d 1009, 1011 (11th Cir. 1986); Am. Fed’n
of Gov’t Employees, AFL-CIO, 278 N.L.R.B. 378, 385 (1986).

Special circumstances may include, inter alia, ensuring
employee safety, protecting the employer’s product, or
maintaining a certain employee image (especially with respect
to uniformed employees). See Nordstrom, Inc., 264 N.L.R.B.
698, 700 (1982). The company contends that there are special
circumstances here, which it describes as follows: “It is vitally
important to The Register-Guard that the public view it in the
most positive light to encourage subscription sales. To maintain
such a public image, The Register-Guard’s representatives (such
as Mr. Kangail) who interact with the public must present a
positive public image, putting The Register-Guard in a light that
will make the public want to subscribe to The Register-Guard.”
Register-Guard Br. 47.
 16

This claim that Kangail’s appearance implicates a special
circumstance simply because he interacts with the public is
contrary to the NLRB’s longstanding rule that “customer
exposure to union insignia alone is not a special circumstance
allowing an employer to prohibit display of union insignia by
employees.” Flamingo Hilton-Laughlin, 330 N.L.R.B. 287, 292
(1999); see United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071
(6th Cir. 1994). Moreover, the company’s assertedly special
concern for its public image is at odds with the ALJ’s finding
that it maintained only an inconsistently described, “vague,
unwritten insignia policy [that] has not been enforced in a wide
variety of other situations.” Guard, 351 N.L.R.B. at 1137 (ALJ
Op.); see NLRB v. Autodie Int’l, Inc., 169 F.3d 378, 384 (6th
Cir. 1999) (“The employer’s burden of justifying restrictions of
Section 7 activity is particularly difficult to meet when the
employer cannot show that its restrictions on [union insignia]
comport with an announced policy of general applicability.”).
The company further contends that it has a “significant interest
in maintaining its public image of impartiality,” and that “the
partial image [Kangail] perpetuated” by wearing union insignia
“kept him from doing his job effectively and had the potential to
lead to a decrease in the number of The Register-Guard
customers.” Register-Guard Br. 47-48. Although this appears
to be a reference to the importance of maintaining an image of
journalistic neutrality, the Register-Guard does not explain why
that image would be threatened by the display of union insignia
by an employee like Kangail -- who had no responsibility at all
for reporting the news or formulating or articulating editorial
policy.

We cannot say that the Board acted unreasonably in
determining that the company failed to satisfy its burden of
establishing special circumstances. Guard, 351 N.L.R.B. at
1110 n.2; see Nordstrom, 264 N.L.R.B. at 700-01. Kangail was
a circulation department district manager whose principal
 17

interaction was with contract carriers. The company has offered
nothing beyond its conclusory claims to support the proposition
that his wearing of a green armband or displaying other insignia
of union support could reasonably be expected to have an
adverse effect on business. We therefore will not set aside the
NLRB’s determination that the Register-Guard “violated Sec.
8(a)(1) by maintaining an overly broad rule prohibiting
employees from wearing or displaying union insignia while
working with the public.” Guard, 351 N.L.R.B. at 1110 n.2.

IV

For the foregoing reasons, we grant the union’s petition for
review, set aside the Board’s determination that the disciplining
of Prozanski for her August e-mails was not an unfair labor
practice, and remand that matter for further proceedings
consistent with this opinion. At the same time, we deny the
Register-Guard’s petition to review the Board’s determinations
that the company violated the National Labor Relations Act with
respect to Prozanski’s May e-mail and Kangail’s display of
union insignia. We grant the Board’s cross-application for
enforcement on those issues.

So ordered.