Communications Workers of America v. NLRB
6 F.4th 15
| D.C. Cir. | 2021Background
- T-Mobile’s Wichita call center (~600 customer-service reps) was the site of recurring union organizing by the Communications Workers of America; management monitored and reported union activity.
- On May 29, 2015, employee Chelsea Befort used her work email (while off the clock) to send identical invitations to many coworkers encouraging union organizing and a social meeting; she sent the messages in multiple batches after an automated limit blocked >100 recipients.
- Management generated a Third Party Activity Report, director Jeff Elliott sent a facility-wide email condemning "mass communication for any non-business purpose" and reminding employees not to discuss/solicit during work, and Befort’s team manager Lillian Maron met with Befort and said union-related emails and mass emails were prohibited.
- An ALJ found T-Mobile violated Section 8(a)(1) by discriminatorily enforcing email/solicitation policies, unlawfully promulgating workplace rules in response to Section 7 activity, and coercively telling employees they could not use company email for union communications.
- The NLRB majority reversed most ALJ findings, distinguishing permitted prior mass emails (management event notices, morale items, personal announcements) as business-related and concluding Befort had no Section 7 right to use employer email under the Board’s Caesars Entertainment framework.
- The D.C. Circuit granted review, held the Board erred by relying on a post hoc distinction (not drawn by T‑Mobile) to reject disparate-treatment evidence, and found the Board’s reversal was not supported by substantial evidence; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discriminatory enforcement of email/solicitation policies | T-Mobile singled out Befort because the email was union-related; company permitted comparable non-union mass emails, so enforcement was discriminatory | T-Mobile claims neutral application of policies (no mass non-business emails permitted; Enterprise User Standard forbids unauthorized access) and that permitted emails were business-related | Court: Board erred by relying on a post hoc employer/Board distinction; substantial evidence shows disparate treatment and insufficient policy justification; grant petition |
| Lawfulness of rules announced in Elliott’s email (mass emails, social media, no union discussion at work) — promulgation in response to union activity | Rules were promulgated in direct response to Befort’s Section 7 activity and thus unlawful under Boeing/Lutheran Heritage framework | Rules were a lawful response to Befort’s impermissible use of employer email (per Caesars Entertainment) | Court: Because discrimination finding is granted, rules were promulgated in response to Section 7 activity; remand for Board to reassess overbreadth in light of that finding |
| Overbreadth of the announced rules | The mass-email and social-media restrictions reasonably interfere with Section 7 rights when issued in response to union activity | The rules would be reasonably understood as targeting impermissible email use, not Section 7 activity, so not overbroad | Court: Remands — Board addressed only part of overbreadth test; must reconsider in view of discrimination holding |
| Coercion from Maron’s statement to Befort (prohibiting union-related emails) | Maron’s statement would reasonably tend to coerce and interfere with Section 7 rights | T-Mobile relies on Caesars and contends the statement responded to impermissible email use | Court: Maron’s statement lacked basis in company policy and was coercive; Board failed to justify reversal — remand for reconsideration |
Key Cases Cited
- Guard Publ’g Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009) (post hoc distinctions cannot justify disparate treatment; employer must have relied on the policy/rationale it actually employed)
- Commc’n Workers of Am. v. NLRB, 994 F.3d 653 (D.C. Cir. 2021) (standard of review for Board decisions: substantial evidence and correct legal standard)
- Oberthur Techs. of Am. Corp. v. NLRB, 865 F.3d 719 (D.C. Cir. 2017) (test for whether an employer communication is coercive under Section 8(a)(1))
- Van Buren v. United States, 141 S. Ct. 1648 (2021) (construing "access" in the computing context)
- Tasty Baking Co. v. NLRB, 254 F.3d 114 (D.C. Cir. 2001) (employer unlawfully singles out union discussions if it prohibits union-related talk but permits other nonwork discussions)
- ITT Indus., Inc. v. NLRB, 251 F.3d 995 (D.C. Cir. 2001) (facially neutral worktime solicitation rules are presumptively valid but cannot be applied non-neutrally)