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T-Mobile’s disparate application of company policies to restrict employee use of email for union organizing unlawful

By Ronald Miller, J.D.

“Though facially neutral restrictions on worktime solicitations in work areas are presumptively valid, an employer commits an unfair labor practice when it applies the rule in non-neutral fashion to union activities.”

Granting the Communication Workers’ petition for review of an NLRB ruling that T-Mobile did not discriminate against a customer service representative at a call center by reprimanding her for sending out a facility-wide email inviting her coworkers to join ongoing efforts to organize a union, the D.C. Circuit held that the Board’s decision that T-Mobile did not discriminate against Section 7 activity was not supported by substantial evidence. The Board did not rely on any of the three company policies allegedly violated by the employee in reversing the ALJ. Further, T-Mobile’s contemporaneous rationales for reprimanding the employee for her email also failed to support its actions. Consequently, the Board’s ruling was reversed (Communication Workers of America, AFL-CIO v. NLRB, July 23, 2021, Pillard, C.).

T-Mobile operates a call center employing approximately 600 customer service representatives. Since 2009, the Communications Workers have been trying to organize employees at the call center to form a union. Call center management monitors union organizing efforts at the call center.

Call center emails. In May 2015, a customer service representative (CSR) at the call center emailed her call center coworkers on her work computer from her work email address encouraging them to join union organizing efforts. She reached out to all of the CSRs in several separate email batches sent over the course of that day, all while she was on break or finished with her shift.

The employee’s email prompted three responses by call center management. First, a T-Mobile HR manager generated a Third-Party Activity Report stating that several CSRs notified management of the employee’s email. Second, the director of the call center sent an email to all call center employees regarding the email. Third, the employee’s team manager met with her and her coach about the email.

The director’s email stated that employees had reported the email to management and many found it disruptive. He noted that T-Mobile does not “allow mass communication for any non-business purpose since this disrupts the workplace and distracts employees from their work.” In a meeting with her team manager, the employee was told that CSRs “cannot send out mass emails and that anything union-related cannot be sent while on the clock.” She was also told that “anything union-related could not be done . . . by using the company’s email system and that it could not be discussed within our working areas.”

Company policies. In response to T-Mobile’s actions regarding the email, the union filed unfair labor practice charges with the NLRB. At a hearing before an administrative law judge, T-Mobile asserted that the employee’s email violated three company policies: an Acceptable Use Policy regarding use of the employer’s communication resources; a No Solicitation or Distribution Policy prohibiting solicitation of any kind on company premises; and Enterprise User Standard, which sets out measures to ensure the security of T-Mobile’s information assets.

The General Counsel alleged that T-Mobile disparately enforced its policies, after uncovering evidence that the employer had previously allowed call center-wide emails unrelated to union activity. The ALJ held that T-Mobile had violated Section 8(a)(1) by disparate application of company policies to union activity. It also determined that T-Mobile prohibited its employees from: (1) sending mass email to other employees, (2) using social media while at work, and (3) discussing the union during work time. It unlawfully promulgated and maintained those rules in response to Section 7 activity and the rules constituted overly broad restrictions on employees’ Section 7 rights.

Board’s conclusions. The Board affirmed the ALJ’s determination that T-Mobile violated Section 8(a)(1) by telling employees that they could not talk about the union during worktime, but otherwise reversed the ALJ. Noting that T-Mobile “never permitted emails in favor of a specific union or against union activity,” the Board held that “the type of emails that [T-Mobile] sent, or permitted employees to send, were not in any way connected to Section 7 activity and were not similar in character” to the employee’s emails. It concluded that the General Counsel failed to satisfy his burden of proving discriminatory enforcement of T-Mobile’s policies. The union petitioned for review.

Discriminatory enforcement. Under Caesars Entertainment, “facially neutral restrictions on the use of employer IT resources are generally lawful to maintain, provided that they are not applied discriminatorily.” Here, the union claimed that T-Mobile “selectively enforced its e-mail policy against the union.” The fact that the employer had “never permitted emails in favor of a specific union or against union activity,” as noted by the Board, was not the only scenario that could run afoul of the bar against discriminating against union-related activity.

The parties agreed that the Board’s Register Guard standard governed the union’s discrimination claim. The Board’s analysis here relied on “a post hoc line between permissible and impermissible conduct the employer had not itself established before the conduct at issue occurred,” said the appeals court, and repeated “the very error we identified in Guard Publishing.”

Guard Publishing makes clear that the consistency of an employer’s responses to union-related and nonunion employee conduct is measured not by whether the employer or Board can identify a legitimate, union-neutral distinction after the fact that the employer might lawfully have drawn, but by reference to the policies the employer actually had in place and the reasons on which it in fact relied for the action challenged as discriminatory.

Employer responses. The D.C. Circuit concluded that the Board’s decision that T-Mobile’s responses to the employee did not discriminate against Section 7 activity was not supported by substantial evidence. The Board did not rely on any of the company’s three policies in reversing the ALJ. T-Mobile relied chiefly on a claimed prohibition on mass emails and raised the Acceptable Use Policy for the first time only after the Union brought its unfair labor practice charges.

Enterprise User Standard. According to the factual findings of the ALJ, neither the Acceptable Use Policy nor the No Solicitation or Distribution Policy applied to the employee’s email, meaning that T-Mobile’s decision to discipline her “could not constitute a neutral application” of those policies. T-Mobile’s reliance on the Enterprise User Standard failed because first, the Board did not itself hold that the Enterprise User Standard covered the employee’s email. Second, even assuming the Board did implicitly accept T-Mobile’s claim that the Enterprise User Standard applied to the employee’s email, substantial evidence did not support that finding.

T-Mobile failed to produce any evidence that it had ever previously enforced the Enterprise User Standard against unauthorized use of distribution lists, or that the Standard actually barred sending separate emails to groups of coworkers who match those jointly accessible via a limited-access distribution list. There is no suggestion that the employee somehow violated the authorization process for access to her email or exceeded “specified access and permission levels” by breaking into a distribution list or any other component of the email system.

Rationale for reprimand. Additionally, T-Mobile’s contemporaneous rationales for reprimanding the employee for her email also failed to support its actions. The primary reason the employer gave at the time was that the email was a “mass” email. However, the ALJ found that this claimed prohibition on mass emails was a new workplace rule promulgated unlawfully in response to union activity. Moreover, even if the statement reflected some type of preexisting, permissible, unwritten company practice or policy. record evidence showed the rule was disparately enforced against the employee’s email.

Based on evidence of disparate treatment of the employee’s email and related facts suggesting a singling out of the union, substantial evidence did not support the Board’s determination that the employee was disciplined for a reason other than that she sent a union-related email. As such, the appeals court granted the union’s petition for review.