T-Mobile Decision Previews Changes to Labor Board Email Standard

While the federal labor board’s recent ruling on company email use in T-Mobile USA Inc. didn’t do much to change the employer-friendly legal standard, it did offer a roadmap for what the liberal majority might do next.

The National Labor Relations Board found T-Mobile unlawfully disciplined a worker for sending a pro-union email, enforcing its nonwork communications policy “selectively and disparately” in a way that impeded workers’ union rights. The board took up the case at the behest of a federal appeals court in Washington, which last year ordered it to reconsider its 2020 ruling in favor of the company, decided by a then-Republican majority.

The latest ruling by a three-member panel that included two Republicans—members John Ring and Marvin Kaplan—kept intact, for now, the 2019 decision in Caesar’s Entertainment, which found that employers have the right to restrict workers’ activity on company email even if it interferes with protected union speech.

But a series of footnotes by the panel’s sole Democratic member, David Prouty, lays out how the liberal majority might reinstate the 2014 standard in Purple Communications to give unions more latitude, and even potentially go further than it did before. The debate is even more pertinent than ever, with scores of employers embracing remote work during the Covid-19 pandemic.

Prouty noted that the US Court of Appeals for the District of Columbia Circuit had misgivings with the earlier 2007 Register Guard decision, which found that workers have “no statutory right” to use company email for union activity. Specifically, Prouty highlighted the court’s skepticism over a part of the standard that lets the board consider post-hoc reasons for limiting email use, rather than having the board evaluate employers’ conduct against the policies on paper.

Broader Ruling Coming?

Prouty’s comments offer a blueprint for the board’s reasoning in some future decision to expand email rights, legal scholars said. “There’s no doubt in my mind” that’s what this is, said Anne Lofaso, a former board attorney and law professor at West Virginia University. “More likely than anything is they want to go even further.”

NLRB General Counsel Jennifer Abruzzo last year identified Caesar’s as one of more than 40 Trump-era precedents on the chopping block. “The mood of the majority is to overturn Caesar’s,” said Mark Gaston Pearce, who chaired the NLRB during the Obama administration.

“Once an employer permits its equipment to be used for any nonwork-related reason, not just for organization purposes, the employer has demonstrated a willingness to yield its property right in that equipment for nonwork purposes, which necessarily includes union and other Section 7-related content,” Prouty wrote, crystallizing the majority’s argument in Purple Communications.

Facts Matter

Pearce also noted it’s unusual that T-Mobile was delegated to a three-member panel, because usually such weighty decisions are made by the five-member board. Any member not assigned to a panel is free to join; Democratic Chair Lauren McFerran and Gwynne Wilcox chose not to in this case.

Prouty also noted that the union didn’t challenge the underlying Caesar’s decision before the court, and that “no party has asked the board to revisit it here.”

“They may feel this case does not present the fact pattern they might use to adopt a much broader rule,” said Jerry Hunter, the NLRB general counsel during the George H.W. Bush administration.

While the board has used remands from the DC Circuit to change past precedents, “I assume there was a backroom decision that this is not the case to change the whole meaning of the law,” Pearce said.

“There’s a mystery there,” he added.