Discipline of Employee for Mass Union E-Mails to Co-Workers Violated NLRA

By Jeffrey Rhodes October 5, 2021
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​The discipline of a T-Mobile call-center employee for sending e-mails to co-workers encouraging them to support the Communications Workers of America (CWA) violated the National Labor Relations Act (NLRA), the U.S. Court of Appeals 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 in for customer service. Groups of 15 employees report to a coach, and the coach is overseen by a team manager.

Since 2009, the CWA—a union—has been trying to organize employees at the Wichita call center to unionize. When management learns of picketing or leafleting by union organizers in the call center's parking lot, it generates a third-party activity report of the incident and forwards it to T-Mobile's corporate headquarters.

On May 29, 2015, a customer-service representative at the call center e-mailed her call-center workers on her work computer, using her work e-mail address, encouraging them to join union-organizing efforts. She tried to e-mail all 595 call-center workers at once, but the e-mail system sent her an automated response stating that she could e-mail no more than 100 people at a time. She then broke up the number of recipients into batches of less than 100 and sent the e-mails on breaks and after her shift. In the e-mail, she asked her co-workers to contact her with questions outside of work hours and invited them to join union organizers at a social gathering after work the next evening.

A T-Mobile HR manager generated a third-party activity report after several employees notified management of the e-mail. The call-center director e-mailed all employees apologizing for the e-mail, and stated that T-Mobile does not allow mass communications for any nonbusiness purpose. The employee's team manager met with the employee and her coach.

According to the employee, the team manager told her that mass e-mails and anything union-related could not be sent while on the clock. The employee stated that she was not on the clock when she sent the e-mails. The team manager responded that the recipients were. She said that anything union-related could not be communicated by using the company's e-mail system and could not be discussed within work areas. The team manager admitted she told the employee that she could not discuss the union while either she or a co-worker was talking to customers.

In response, the union filed unfair labor practice charges. At a hearing before an administrative law judge (ALJ), the call-center manager stated that the e-mail violated T-Mobile's Acceptable Use Policy, its No Solicitation or Distribution Policy, and its Enterprise User Standard. These policies restrict use of T-Mobile's e-mail system to work-related communication, prohibit solicitation during work time and prohibit use of information systems except as permitted.

The National Labor Relations Board (NLRB) general counsel, however, claimed that these policies were disparately enforced against the union because certain center-wide e-mails had previously been allowed. These included a facility-wide e-mail by an employee who had lost his phone charger and mass e-mails regarding personal milestone events, such as birth announcements, baby showers and death notices, as well as e-mails alerting employees to free food available in the office, employee events like lip-sync contests and free sports tickets.

The ALJ thus found that T-Mobile had violated Sections 7 and 8(a)(1) of the NLRA by interfering with employees' organizing rights and promulgating overly broad rules. On appeal, the full NLRB upheld the decision that telling employees they could not talk about the union during work time violated Section 8(a)(1). However, it reversed all other determinations made by the ALJ.

The NLRB found that the mass communications allowed by T-Mobile had a business purpose by improving camaraderie among its workforce and thus did not show discriminatory enforcement. The NLRB supplemented its decision to find that the policies were not overly broad.

The union petitioned the D.C. Circuit for review of the NLRB's decisions, and the D.C. Circuit overturned the NLRB's decision. It found that the employee's e-mail did not violate T-Mobile's policies and that employee morale could not justify the previous mass e-mails allowed. These e-mails included employee responses to personal milestones, which were clearly personal and not business-related in nature.

The D.C. Circuit thus reversed the decision and sent the case back to the NLRB.

Communications Workers of America, AFL-CIO v. National Labor Relations Board, D.C. Cir., No. 20-1112 (July 23, 2021), rehearing en banc denied (Sept. 20, 2021).

Professional Pointer: Employers must rigorously enforce nonsolicitation and nondistribution policies to rely on them to restrict union-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 an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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