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NLRB Missed Discriminatory Enforcement of Policies Against Pro-Union Employee Email: DC Circuit
Practical Law Legal Update w-032-0614 (Approx. 5 pages)
NLRB Missed Discriminatory Enforcement of Policies Against Pro-Union Employee Email: DC Circuit
by Practical Law Labor & Employment
| Law stated as of 03 Oct 2022 • USA (National/Federal) |
In Communications Workers v. NLRB, the DC Circuit held that the National Labor Relations Board (NLRB) erred in finding lawful an employer's discriminatory policy enforcement against a pro-union email sent by an employee.
On July 23, 2021, in Communications Workers v. NLRB, the DC Circuit held that the NLRB's conclusion that T-Mobile USA, Inc. lawfully disciplined an employee who sent an email to over 500 employees using the company's email system and urging them to meet union organizers outside of work the next evening was not supported by substantial evidence. In particular, the DC Circuit held that:
- The NLRB erroneously relied on post hoc explanations for the discipline. The consistency of an employer's responses to union-related and nonunion employee conduct should have been measured not by whether the employer or the NLRB can identify a legitimate, union-neutral distinction after the fact that the employer might lawfully have drawn, but by reference to the policies the employer actually had in place and the reasons on which it in fact relied for the action challenged as discriminatory.
- The NLRB administrative law judge's (ALJ) factual findings not challenged by the employer and therefore left undisturbed by the NLRB, confirm that the three policies the employer relied on do not apply to the employee's email.
- The employer's contemporaneous rationales for reprimanding the employee for her email failed to support its actions.
- Rules that the employer created contemporaneously with the discipline were unlawfully promulgated. The discipline and the rules were both in response to union activity.
- Prohibitory statements to the employee concerning sending mass emails:
- were not based on existing policies;
- flowed from discriminatory applications of existing policies and unlawfully promulgated rules; and
- in the totality of circumstances, reasonably tended to coerce or interfere with the employee's Section 7 right to communicate about the union. The NLRB failed to identify how those statements were not unlawfully coercive.
The practical implications of this case are that the DC Circuit carefully scrutinizes alleged disparate treatment of union activity and does not uphold employment actions based on post hoc rationalizations such as:
- Employer references to rules on which it did not in fact base its decision to discipline.
- Distinctions the NLRB recognizes concerning statutory rights, such as under its Caesars Entertainment standard for employees use of workplace email for concerted activity, that did not guide the employer's decision at the time of the discipline (368 N.L.R.B. No. 143 (Dec. 16, 2019)).
The case also highlights that employers should challenge ALJ factual findings that undercut their legal arguments and ensure that the NLRB addresses those factual findings in its decision on the employer's exceptions, even if the NLRB decides the case using different analysis.
UPDATE:
On remand, the NLRB issued a Second Supplemental Decision and Order applying the DC Circuit's decision as the law of the case and finding that the employer violated Section 8(a)(1) of the NLRA by:
- Selectively and disparately enforcing the three referenced policies against the employee based on the employee's union activity.
- Promulgating new rules in direct response to the employee's union activity that prohibited employees from sending mass communications for any non-business purpose and using social media during work, citing the second prong of the standard articulated in Lutheran Heritage Village–Livonia (343 N.L.R.B. 646, 647 (2004)).
- Telling the employee that sending union-related emails to other employees' work addresses was not permitted, concluding that under the totality of the circumstances the statement was coercive and had a reasonable tendency to interfere with the employee's right to communicate about the union.