Disciplining a T-Mobile call center employee for sending emails to colleagues encouraging them to support the Communications Workers of America (CWA) violated the National Labor Relations Act (NLRA), the Court of United States appeal for the District of Columbia Circuit ruled.
T-Mobile operates a call center in Wichita, Kan., Where it employs approximately 600 customer service representatives who take calls from customers calling for customer service. Groups of 15 employees report to a coach, and the coach is supervised by a team leader.
Since 2009, the CWA, a union, has been trying to unionize the employees at the Wichita call center. When management learns that union organizers have been picketing or distributing leaflets in the call center parking lot, they generate a third-party activity report on the incident and forward it to T-Mobile headquarters.
On May 29, 2015, a call center customer service representative emailed his call center employees on his work computer, using his work email address, encouraging them to join the effort. unionization. She tried emailing the 595 call center workers at a time, but the email system sent her an automated response saying she couldn’t email more than 100 people at a time. She then divided the number of recipients into batches of less than 100 and sent the emails during breaks and after her shift. In the email, she asked her colleagues to contact her with after-hours questions and invited them to join the union organizers in an after-work social meeting the following evening.
A T-Mobile human resources manager generated a third-party activity report after multiple employees informed management of the email. The call center manager emailed all employees apologizing for the email and said T-Mobile does not allow mass communications for non-business purposes. The employee’s team leader met with the employee and her coach.
According to the employee, the team leader told her that mass emails and everything union related could not be sent during the clock. The employee said she was not on time when she sent the emails. The team leader replied that the recipients were. She said anything relating to the union could not be communicated using the company’s email system and could not be discussed in work areas. The team leader admitted to telling the employee that she could not discuss the union while she or a coworker spoke to customers.
In response, the union filed charges of unfair labor practices. In a hearing before an Administrative Judge (ALJ), the call center manager said the email violated T-Mobile’s acceptable use policy, its non-solicitation or distribution policy, and its corporate user standard. These policies limit the use of T-Mobile’s e-mail system to work-related communications, prohibit solicitation during working hours, and prohibit the use of information systems unless authorized.
The National Labor Relations Board (NLRB) general counsel, however, said these policies were applied disparately against the union because some center-wide emails had previously been allowed. These included a facility-wide email sent by an employee who had lost their phone charger and mass emails regarding personal milestone events, such as birth announcements, baby shower and death notices, as well as emails alerting employees to free food. available in the office, employee events like lip-syncing contests and free sports tickets.
The ALJ therefore concluded that T-Mobile had violated sections 7 and 8 (a) (1) of the NLRA by interfering with the organizational rights of employees and by promulgating overly broad rules. On appeal, the NLRB upheld the ruling that telling employees they could not talk about the union during working hours violated section 8 (a) (1). However, he overturned all other decisions taken by the ALJ.
The NLRB found that the mass communications authorized by T-Mobile had a business purpose by improving camaraderie among its workforce and therefore did not show discriminatory application. The NLRB supplemented its decision by concluding that the policies were not too broad.
The union asked the DC Circuit to review the NLRB’s decisions, and the DC Circuit overturned the NLRB’s decision. He found that the employee’s email did not violate T-Mobile policies and that employee morale could not justify previous mass emails allowed. These emails included employee responses to personal milestones, which were clearly of a personal nature and not related to the company.
The DC Circuit therefore overturned the decision and referred the matter back to the NLRB.
Communications Workers of America, AFL-CIO v. National Labor Relations Board, DC Cir., N ° 20-1112 (July 23, 2021), bench repetition refused (September 20, 2021).
Professional pointer: Employers must rigorously enforce non-solicitation and non-distribution policies to rely on them to restrict organizing efforts. Even small exceptions to these policies can result in unfair labor practice determinations when the policies are applied to pro-union communications.
Jeffrey Rhodes is a lawyer with McInroy, Rigby & Rhodes LLP in Arlington, Virginia.