A federal appeals court in Washington, D.C., will weigh whether
During oral argument at the U.S. Court of Appeals for the District of Columbia Circuit on Friday, the National Labor Relations Board will defend its ruling that T-Mobile didn’t unlawfully discriminate against a worker for sending a mass email to her colleagues to invite them to meet and talk about forming a union.
The Communications Workers of America challenged the NLRB’s decision, arguing that T-Mobile had previously allowed such emails on a range of other topics aside from unions with no repercussions. Those facility-wide messages included an announcement about nacho day in the cafeteria, a request for lip sync contest participants, and a query about a missing telephone charger, the union said.
The NLRB cleared the way for employers to prohibit workers from using company email for union purposes with its 2019 ruling in Caesars Entertainment d/b/a Rio All-Suites, which overturned an Obama-era decision that had granted workers unfettered access to email systems.
Not only did the board reinstate its standard for employer control of email systems from its 2007 ruling in Register Guard, it also ruled that workers don’t have the right to use any company equipment, including IT systems, for collective action.
Crucially for the case involving T-Mobile, the Caesars/Rio ruling also said employer restrictions on email and other digital resources for organizing purposes can’t discriminate against union activity.
But the decision didn’t set forth a test for deciding what constitutes unlawful anti-union bias with respect to restrictions on union-related communications. The board declined to say whether its narrow standard for anti-union discrimination from its 2019 decision in Kroger, which dealt with restrictions on union access to property, might affect the test for bias in Register Guard.
The D.C. Circuit case stems from a 2015 email that T-Mobile customer service representative Chelsea Befort sent to fellow workers at a call center in Wichita, Kan. The company said the email violated its workplace rules, which included a bar against sending mass emails.
In its April 2020 ruling, the all-Republican NLRB said T-Mobile’s enforcement of its rules on Befort’s email wasn’t discriminatory, despite never sanctioning workers for other mass emails.
A restriction on email use is unlawfully biased under the standard from Register Guard if it treats communications differently that are similarly related to unions or other concerted activity protected by Section 7 of the National Labor Relations Act, the board said.
T-Mobile didn’t let workers send emails for their personal benefit or to further an “organizational purpose,” according to the NLRB.
“Instead, the type of emails that the Respondent sent, or permitted employees to send, were not in any way connected to Section 7 activity and were not similar in character to Befort’s emails,” the board said.
D.C. Circuit Precedent
The CWA’s challenge to the board’s ruling will be heard by Circuit Judges
The D.C. Circuit rejected a similar NLRB rationale for permitting restrictions on union-related email in a 2009 decision that reviewed the board’s application of its Register Guard bias standard, the CWA told the court in a brief.
In Guard Publishing v. NLRB, the circuit court said the problem with drawing the line between emails related to Section 7 activity is that it was a post-hoc invention that the employer formulated after the events that gave rise to the case, according to the union. The employer expressly disciplined a worker for sending union-related email, so the restriction was unlawfully biased.
“This case is governed by Guard Publishing,” said the CWA, arguing that Befort was reprimanded for the content of her email, regardless of what other reasons T-Mobile later asserted.
No Disparate Treatment: NLRB
The NLRB, however, argued in a brief that Guard Publishing doesn’t control the case. The D.C. Circuit said in that ruling that there wasn’t enough evidence to show anything other than the union content of the email drove the worker’s discipline.
“Thus, in reversing the Board, the Court implicitly concluded that the employer had previously permitted employees to send comparable nonwork-related emails and was treating the union-related emails disparately,” the board said.
In contrast, there’s no evidence that T-Mobile previously allowed emails that were similar to Berfort’s union message, the NLRB said.
NLRB spokesman Kevin Petroccione declined to comment.
CWA’s lawyer, Matthew Ginsburg of the AFL-CIO, and T-Mobile’s attorney, Mark Theodore of Proskauer Rose, didn’t respond to telephone and email requests for comment.
The case is CWA v. NLRB, D.C. Cir., No. 20-01112, oral argument 1/29/21.
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