Employers May Not Disparately Enforce E-mail Policies to Prohibit Union Activity

In a case applicable to unionized and non-unionized employers alike, the U.S. Court of Appeals for the D.C. Circuit found that an employer unlawfully discriminated against an employee under the National Labor Relations Act (NLRA) by reprimanding her for sending facility-wide e-mails seeking employee support for a union, supposedly in violation of the company’s e-mail policy prohibiting the mass distribution of non-business e-mails.

Facts: In Communications Workers of America, AFL-CIO v. NLRB, in the context of union organizing activity, a customer service representative used the employer’s e-mail system during her non-working time to send several mass e-mails soliciting her coworkers’ support for the Union. In response, the employer first sent a center-wide e-mail directing employees not to send mass e-mails on the employer’s work e-mail system for non-business purposes. The employer then disciplined the employee for violation of the prohibition on mass e-mails. The union filed an unfair labor practice charge with the National Labor Relations Board.

ALJ and Board Decisions: At the initial stage, an Administrative Law Judge found that the employer violated the NLRA by disparately applying company policies to union activity. Although the employer stated that it prohibits any non-business mass e-mails as disruptive and distracting, and that many employees found the e-mail disruptive, there was also evidence that other non-business mass e-mails, such as food in the break room or employee service milestones, had been permitted.

The Board reversed the ALJ’s determination regarding the use of the e-mail system for mass e-mails. The Board held that the relevant e-mails in this case are not the type of e-mails the employer permitted employees to send on its e-mail system – i.e., e-mails restricted to those with a “business purpose” – and were not in any way connected to union activity. Specifically, the Board noted that the employer never permitted e-mails either in favor or against a specific union or union activity. Moreover, non-business e-mails related to food in the break room and celebrating employee service milestones, “were not similar in character” to the employee’s mass e-mails in this case.

D.C. Circuit Reverses the Board: A unanimous D.C. Circuit reversed the Board. First, the D.C. Circuit held that the employer never previously enforced any policy to prohibit employee mass e-mail communication regarding non-business subjects. Indeed, the evidence indicated that the employer permitted mass e-mail use for non-business purposes, even if those non-business purposes were unrelated to union activity. Thus, the employer failed to demonstrate a neutral application of its policy and therefore had discriminated against the employee’s union activity. Further, because the employer announced a new rule – i.e., prohibition of mass e-mails for non-business purposes – in response to the employee’s union activity, the e-mail and the subsequent reprimand of the employee constitute violations of the NLRA.

Takeaway: Notably, the Board under the Obama administration had taken the position that employers may not prohibit e-mail use for union activity, as set forth in the Purple Communications case. In Caesar’s Entertainment, however, the Trump Board reversed Purple Communications and held “facially neutral restrictions on the use of employer IT resources are generally lawful to maintain, provided that they are not applied discriminatorily.” This case provides a stark reminder to employers that the consistency of its responses to union-related and non-union employee conduct is measured not by whether it or the Board can identify some legitimate, union-neutral distinction after the fact, but by reference to policies the employer had in place and the reasons on which it in fact relied for the action challenged as discriminatory.