The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 29, 2021 Decided July 23, 2021
No. 20-1112
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
T-MOBILE USA, INC.,
INTERVENOR
Consolidated with 20-1186
On Petitions for Review of Orders
of the National Labor Relations Board
Matthew J. Ginsburg argued the cause for petitioner. With
him on the briefs were Glenda L. Pittman and James B.
Coppess.
Eric Weitz, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Peter B. Robb, General Counsel, Ruth E. Burdick, Acting
Deputy Associate General Counsel, David Habenstreit,
2
Assistant General Counsel, and Kira Dellinger Vol,
Supervisory Attorney.
Mark Theodore argued the cause for intervenor T-Mobile
USA, Inc. in support of respondent.
Before: ROGERS, PILLARD and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The Communication Workers of
America petitions for review of a decision by the National
Labor Relations Board (NLRB) that T-Mobile did not
unlawfully discriminate against union activity at its call center
in Wichita, Kansas. The Union’s claims arise from T-Mobile’s
responses to an email sent by a customer service representative
through her work email account inviting her coworkers to join
ongoing efforts at the call center to organize a union. T-Mobile
reprimanded the customer service representative for sending
the email, and call center management further responded by
sending out a facility-wide email stating that it did not permit
its employees to send mass emails through the company email
system for non-business purposes.
An administrative law judge held that, in so responding,
T-Mobile violated the National Labor Relations Act (NLRA),
including by discriminating against the employee based on the
union-related content of her email. The judge rejected T-
Mobile’s claim that its reactions to the email were justified by
written company policies. The Board reversed in all respects
relevant to these petitions, distinguishing evidence that T-
Mobile had previously permitted mass emails on the ground
that those emails were not similar in character to the email here.
As the Board saw it, T-Mobile’s emails were business-related,
whereas the one that drew the reprimand was for employees’
3
personal benefit or to advance an organization other than the
employer.
We grant the Union’s petitions in full. The Board erred
under our precedent by relying on its own post hoc distinction
between permissible and impermissible employee conduct to
reject the evidence of disparate treatment. Based on that
evidence of disparate treatment, and because the policies and
rationales that T-Mobile itself offered in defense of its actions
do not support them, the Board’s decision to reverse the ALJ’s
finding that T-Mobile discriminatorily enforced company
policies related to email use is not supported by substantial
evidence.
BACKGROUND
T-Mobile operates a call center in Wichita, Kansas, where
it employs approximately 600 customer service
representatives. Those representatives take calls at individual
workstations from T-Mobile customers calling in for customer
service. The representatives are organized into teams of about
fifteen who sit in the same area of the office and report to a
team “coach.” A coach is in turn overseen by a team manager.
Since 2009, the Communications Workers of America (the
Union) has been trying to organize employees at the Wichita
call center to form a union.1 Call center management monitors
union organizing efforts at the call center. For instance, when
call center management learns of picketing or leafleting by
union organizers in the call center’s parking lot, it generates
what the company calls a “Third Party Activity Report” of
basic details about the incident. The report is then forwarded
to T-Mobile’s corporate headquarters. A human resources
1
In 2011 and 2015, T-Mobile settled allegations that the company
engaged in unfair labor practices at the call center.
4
manager testified that the reports are meant to cover any
activity by a third party that would “disrupt” the center’s
operations, J.A. 118-19, though she acknowledged that, in
practice, all reports generated at the center concern union
activity, J.A. 127.
On May 29, 2015, Chelsea Befort, a customer service
representative at the call center, emailed her call center
coworkers on her work computer from her work email address
encouraging them to join union organizing efforts. Befort first
tried to send the email at the start of her lunch break to 595 of
the center’s customer service representatives at once, copying
their addresses from an email distribution list of all employees
in that category. When she returned from lunch, she saw that
she had received an automated response notifying her that she
could email no more than 100 people at a time. She thus tried
emailing smaller groups of her coworkers, succeeding in
sending her message once the number of recipients fell below
100. She reached out to all of the customer service
representatives in several separate email batches sent over the
course of that day, all while she was on break or finished with
her shift. In the emails, Befort wrote: “Feel free to contact me
with any questions, but please do so outside of working
hours.” J.A. 172 (emphasis in original). She also invited the
recipients to join people involved in the organizing efforts at a
social gathering outside of work the next evening. Because the
emails had identical contents, we refer to them simply as
Befort’s email.
Befort’s email prompted three responses by call center
management. First, on June 1, a T-Mobile human resources
manager generated a Third Party Activity Report stating that
several customer service representatives notified management
of Befort’s email. Second, on June 2, Jeff Elliott, director of
the call center, sent an email to all of the call center’s
5
employees regarding Befort’s email. Third, also on June 2,
Lillian Maron, Befort’s team manager, met with Befort and her
coach about the email. The latter two responses—Elliott’s
email and Maron’s meeting—are the bases of the unfair labor
practice claims in this case.
In his facility-wide email, Jeff Elliott said Befort’s
coworkers had reported Befort’s email to management and that
many found it disruptive. Elliott apologized for any disruption
and used his email “to remind [the recipients] that it is not
appropriate for employees to send emails to large numbers of
employees.” J.A. 181. Specifically, he noted that T-Mobile
does not “allow mass communication for any non-business
purpose since this disrupts the work place and distracts
employees from their work.” Id. In addition, responding to an
assertion in Befort’s email that workers at the call center were
being silenced, Elliott stated that “[e]mployees have countless
opportunities to communicate with others when they are not
working.” Id. He identified, among other communication
opportunities, use of “social networks—off the job of course.”
Id. And he went on to say that “it is not appropriate to solicit
or discuss other issues when you are supposed to be working.”
Id.
On the same day, Befort’s team coach called her into a
meeting with team manager Maron. According to Befort,
Maron told Befort that customer service representatives
“cannot send out mass emails and that anything union-related
cannot be sent while on the clock.” J.A. 52. When Befort
pointed out that she was not on the clock when she sent the
emails, Maron noted that the problem was that recipients of the
email were on the clock when they opened and read the email.
She did not, however, explain how Befort was responsible for
when her co-workers might have chosen to read her email.
According to Befort, Maron also said that “anything union-
6
related could not be done . . . by using the company’s email
system and that it could not be discussed within our working
areas.” Id. Maron’s recollection of her conversation with
Befort differed, though she acknowledged she told Befort she
may not discuss the union when either Befort or the coworker
she addresses is talking to customers. Maron testified that she
adhered to talking points that a human resources manager
prepared specifically for the meeting with Befort. Included
among those talking points was a draft statement to Befort that
she may use email to communicate about the union so long as
neither she nor the recipient is working and the email use is not
disruptive.
In response to T-Mobile’s actions regarding Befort’s email
and other conduct at the call center in 2015 not at issue on
appeal, the Union filed unfair labor practice charges. At a
hearing before an administrative law judge (ALJ), call center
director Elliott and a human resources manager testified that
Befort’s email violated three company policies. One of the
policies they identified, T-Mobile’s Acceptable Use Policy,
establishes rules regarding the company’s information and
communication resources, including that such resources “are to
be used for legitimate business purposes.” J.A. 191. The
policy permits “[i]ncidental and infrequent personal use of the
resources” so long as such use is consistent with other terms of
the policy. J.A. 192. Among the prohibited uses, the
Acceptable Use Policy identifies distribution of “junk mail and
chain letters,” and advocacy or solicitation on behalf of outside
organizations. J.A. 192. Call center management asserted that
Befort’s email was both junk mail and barred solicitation.
The second policy T-Mobile management invoked at the
hearing was a No Solicitation or Distribution Policy in the
Employee Handbook. That policy prohibits “[s]olicitation of
any kind by employees on Company premises during working
7
time (of either the employee engaged in soliciting or the
employee being solicited).” J.A. 202. Call center management
asserted that Befort’s email was received and read by
employees during working time.
The third policy T-Mobile identified to the ALJ was its
Enterprise User Standard, which sets out measures to ensure
the security of T-Mobile’s information assets. The standard
states that “[u]sers must follow the appropriate authorization
process for requesting an account granting specified access and
permission levels” and that “[a]ll access that is not explicitly
authorized is forbidden.” J.A. 206. Management argued
Befort violated the standard because she lacked the authority to
send an email to the distribution list covering all customer
service representatives yet found a way around what it cast as
a mass-communication bar.
In support of its allegation that T-Mobile disparately
enforced its policies, the NLRB’s General Counsel identified
evidence of call center-wide emails unrelated to union activity
that T-Mobile had previously allowed. For instance, an
employee emailed the entire call center about the employee’s
missing phone charger. And employees used the reply-all
function in response to facility-wide emails regarding personal
milestone events, including emailed birth announcements,
information about baby showers, and death notices. Other
emails the General Counsel identified as comparator non-
business emails were from management, alerting employees to,
for instance, popcorn, nachos, or slushies available in the
office, employee events like salsa-making or lip sync contests,
or free sports tickets. In contrast to call center management’s
response to Befort’s email, T-Mobile disregarded and never
enforced its policies against any such non-union-related mass
emails.
8
After a hearing, the ALJ held that T-Mobile had violated
Section 8(a)(1) of the National Labor Relations Act, which
states that it is an unfair labor practice “to interfere with,
restrain, or coerce employees in the exercise of” their
organizing rights. 29 U.S.C. § 158. The first unfair labor
practice was T-Mobile’s disparate application of its Acceptable
Use Policy, No Solicitation or Distribution Policy, and
Enterprise User Standard to Befort’s union activity. In
reaching this conclusion, the ALJ found that Befort’s email was
neither junk mail nor solicitation and thus did not fall within
the scope of either of the first two policies. As to the third
policy, the ALJ noted that T-Mobile failed to produce any
evidence that it had enforced the Enterprise User Standard
against any other employee’s use of an email distribution list.
In addition to the disparate enforcement determination, the
ALJ held that T-Mobile committed other unfair labor practices
in responding to Befort’s email. Two of the violations relevant
here stem from restrictions on communication Elliott included
in his June 2 email. He stated that T-Mobile prohibited its
employees from: (1) sending mass email to other employees,
(2) using social media while at work, and (3) discussing the
union during work time. Elliott claimed that the statements in
his email merely reflected existing T-Mobile policies, but
employees testified T-Mobile had never previously
communicated those particular restrictions. As relevant here,
the ALJ determined that, through Elliott’s email, T-Mobile
unlawfully promulgated and maintained rules in response to
Section 7 activity and that the rules constituted overly broad
restrictions on employees’ Section 7 rights. In addition, the
ALJ found that Maron’s statement to Befort that Befort “could
not use [T-Mobile’s] email to send messages about the Union”
was “coercive because an employee would believe she did not
have a right to use the email system to communicate about
Union or other protected activities.” T-Mobile USA, Inc. (T-
9
Mobile I), 369 N.L.R.B. No. 50, slip op. at 18 (Apr. 2, 2020)
(J.A. 29).
On administrative appeal, the Board affirmed the ALJ’s
determination that T-Mobile violated Section 8(a)(1) by telling
employees that they could not talk about the Union during
worktime; the Board otherwise reversed the ALJ in relevant
part. In assessing the Union’s allegation that T-Mobile
discriminatorily applied its Acceptable Use Policy, No
Solicitation or Distribution Policy, and Enterprise User
Standard, the Board applied its own precedent that, “in order to
be unlawful, discrimination must be along Section 7 lines.”
Register Guard, 351 N.L.R.B. 1110, 1118 (2007), enforced in
part and remanded sub nom. Guard Publ’g Co. v. NLRB, 571
F.3d 53 (D.C. Cir. 2009). “In other words, unlawful
discrimination consists of disparate treatment of activities or
communications of a similar character because of their union
or other Section 7-protected status.” Id.
Applying that standard to the facts at hand, the Board
acknowledged “numerous” facility-wide emails in the record
from management on “nonwork-related subjects”—including
the email from a non-supervisory senior representative about
the lost phone charger, and two emails from Elliott’s
administrative assistant about signing a birthday card for T-
Mobile’s CEO. T-Mobile I, 369 N.L.R.B. No. 50, slip op. at 3
(J.A. 14). But, noting that T-Mobile “never permitted emails
in favor of a specific union or against union activity,” the Board
held that “the type of emails that [T-Mobile] sent, or permitted
employees to send, were not in any way connected to Section
7 activity and were not similar in character to Befort’s emails.”
Id. In explaining why Befort’s email was not similar, the Board
offered the following distinction:
10
In particular, the comparator emails cited by the
General Counsel as disparate-treatment were,
by and large, emails that [T-Mobile] sent for its
own business-related interests of improving the
camaraderie among its work force or helping to
reunite a lost item with its owner. There is no
evidence that [T-Mobile] permitted employees
to send mass emails for their personal benefit,
much less to further any [non-T-Mobile]
organizational purpose.
Id. Given the absence of such evidence, the Board held that the
NLRB General Counsel had failed to satisfy his burden of
proving discriminatory enforcement of T-Mobile’s policies.
In a supplemental decision, the Board also reversed the
ALJ’s findings that the new rules stated in Elliott’s emails were
promulgated in response to Section 7 activity and were
overbroad. Under recent Board precedent that holds an
employer is presumptively entitled to restrict its employees’
personal use of its information technology, the Board held “that
Befort did not have a Section 7 right to use her work email to
send her message to her coworkers.” T-Mobile USA, Inc. (T-
Mobile II), 369 N.L.R.B. No. 90, slip op. at 1 (May 27, 2020)
(J.A. 37) (citing Caesars Ent., 368 N.L.R.B. No. 143, slip op.
at 12 (Dec. 16, 2019)). Based on that determination, it
concluded that the rules in Elliott’s email “were promulgated
in response to Befort’s impermissible use of its email system
in light of [T-Mobile’s] lawful restriction, and not because she
had engaged in any protected activity.” Id. It also held the
announced rules would not be reasonably interpreted by other
employees to interfere with Section 7 activity, so they were not
overbroad. Because T-Mobile “sent its email in response to
Befort’s violation of several of its policies,” the Board
explained, other employees at the call center “would
11
understand that [the new rules] do not prohibit or interfere with
the exercise of NLRA rights, but only restrict the type of
impermissible use of [T-Mobile’s ] email system engaged in by
Befort.” Id. at 1-2 n.1.
The Union petitioned this court for review of the initial
decision and supplemental decision, we consolidated those
petitions, and T-Mobile intervened in support of the Board.
DISCUSSION
The Union’s main challenge to the Board’s decision is that
T-Mobile’s responses to Befort’s email discriminated against
expressive activity protected by Section 7 of the NLRA. The
Union claims that T-Mobile’s conduct related to Befort’s email
was further unlawful in several respects. “This court will
uphold a decision of the Board unless it relied upon findings
that are not supported by substantial evidence, failed to apply
the proper legal standard or departed from its precedent without
providing a reasoned justification for doing so.” Commc’n
Workers of Am. v. NLRB, 994 F.3d 653, 658 (D.C. Cir. 2021)
(citation and internal quotation marks omitted).
A. Discriminatory Enforcement
Under the Board’s recent decision in Caesars
Entertainment, which the Union does not challenge, “facially
neutral restrictions on the use of employer IT resources are
generally lawful to maintain, provided that they are not applied
discriminatorily.” 368 N.L.R.B. No. 143, slip op. at 12. The
Union claims discriminatory application—that is, that T-
Mobile “selectively enforced its e-mail policy against the
union.” Guard Publ’g, 571 F.3d at 58. “Though facially
neutral restrictions on worktime solicitations in work areas are
presumptively valid, an employer commits an unfair labor
practice when it applies the rule in non-neutral fashion to union
12
activities.” ITT Indus., Inc. v. NLRB, 251 F.3d 995, 1006 (D.C.
Cir. 2001).
The Union argues that T-Mobile singled out Befort’s email
for condemnation because of its union-related content, and it
identifies other mass emails permitted by T-Mobile as evidence
of disparate treatment. The ALJ rejected T-Mobile’s reliance
on several facially neutral company policies that it claimed
covered Befort’s email and not the comparator missives
without singling out union content. The Board reversed,
concluding that T-Mobile did not discriminate “along Section
7 lines.” T-Mobile I, 369 N.L.R.B. No. 50, slip op. at 3 (J.A.
14) (quoting Register Guard, 351 N.L.R.B. at 1118). In so
doing, the Board cited the definition of discrimination it
established in Register Guard, namely “disparate treatment of
activities or communications of a similar character because of
their union or other Section 7-protected status.” 351 N.L.R.B.
at 1118. In Register Guard, the Board noted that, for example,
“an employer clearly would violate the Act if it permitted
employees to use e-mail to solicit for one union but not another,
or if it permitted solicitation by antiunion employees but not by
prounion employees.” Id. In such cases, an employer “has
drawn a line between permitted and prohibited activities on
Section 7 grounds.” Id. The Board emphasized that by
contrast, “nothing in the [NLRA] prohibits an employer from
drawing lines on a non-Section 7 basis,” such as a line
“between invitations for an organization and invitations of a
personal nature,” or “between business-related use and non-
business-related use.” Id.
In this case, after acknowledging the various emails that
T-Mobile allowed, the Board noted that the company had
“never permitted emails in favor of a specific union or against
union activity.” T-Mobile I, 369 N.L.R.B. No. 50, slip op. at 3
(J.A. 14). But those are not the only scenarios that run afoul of
13
the bar against discriminating against union-related activity.
The Board apparently recognized as much, supplementing that
patently inadequate distinction with its own explanation of why
Befort’s email was not “similar in character” to the other
emails. Id. It characterized the other emails as “by and large,
emails that [T-Mobile] sent for its own business-related
interests.” Id. “There is no evidence,” the Board noted, that T-
Mobile “permitted employees to send mass emails for their
personal benefit, much less to further any [non-T-Mobile]
organizational purpose.” Id.
The parties here agree that the Board’s Register Guard
standard governs the Union’s discrimination claim. See
Caesars Ent., 368 N.L.R.B. No. 143, slip op. at 8 n.68
(adhering to Register Guard’s discrimination standard). That
standard must be understood in light of our decision in Guard
Publishing, reviewing the Board’s application of the standard
in Register Guard itself. The Board’s analysis here—reliant on
a post hoc line between permissible and impermissible conduct
the employer had not itself established before the conduct at
issue occurred—repeats the very error we identified in Guard
Publishing.
In Guard Publishing, a newspaper disciplined its
employee for sending union-related emails in violation of a
policy prohibiting use of the company’s email system for non-
work-related solicitations. 571 F.3d at 54. Finding that one of
the emails was not a solicitation and thus not prohibited by the
policy, the Board concluded that discipline for that email was
unlawfully discriminatory. Id. at 57. But it reached the
opposite conclusion with regard to two emails that were
solicitations. Id. at 57-58. Enforcement of the policy against
those emails was not discriminatory, the Board held, even
though the company permitted “solicitations for ‘sports tickets
or other similar personal items.’” Id. at 58 (quoting Register
14
Guard, 351 N.L.R.B. at 1119). The Board allowed discipline
in response to union-related but not other solicitations by
reference to a line not drawn by the employer’s own policy or
rationale, reasoning that “there was ‘no evidence that the
[newspaper] permitted employees to use e-mail to solicit other
employees to support any group or organization.’” Id. at 58
(quoting Register Guard, 351 N.L.R.B. at 1119) (emphasis
added in Guard Publ’g).
We sustained the Board’s holding that discipline for the
non-solicitation email was discriminatory: “Enforcement of
the [policy] against [the email] could not constitute a neutral
application of that policy because, simply put, the [policy] did
not cover such an e-mail.” Id. at 58-59. But we held substantial
evidence did not support the Board’s decision that the
newspaper lawfully disciplined the employee for the union-
related solicitations, because the Board relied on “a post hoc
invention” to distinguish them from solicitations that the
newspaper allowed. Id. at 60. “Whatever the propriety of
drawing a line barring access based on organizational status”
of an email’s subject matter, we noted, “neither the company’s
written policy nor its express enforcement rationales relied on
an organizational justification.” Id. The newspaper’s policy
“made no distinction between solicitations for groups and for
individuals, mentioning solicitations for ‘outside
organizations’ as just one example of the forbidden category of
all ‘non-job-related solicitations.’” Id. (citation omitted). And
the newspaper’s “disciplinary warning, which explained the
rationale for disciplining the [employee], did not invoke the
organization-versus-individual[-solicitations] line drawn by
the Board.” Id. “To the contrary, it told [the employee] to
‘refrain from using the Company’s systems for union/personal
business’—the reference to ‘personal’ making it clear that the
offense did not depend on whether an organization was
15
involved.” Id. (citation omitted) (emphasis added in Guard
Publ’g).
The Board here ignores the lesson of Guard Publishing. It
argues that “the question is whether [T-Mobile’s] decision to
restrict Befort’s use of its proprietary email system was
discriminatory relative to its treatment of similar emails[.]”
Resp’t Br. 21. Guard Publishing makes clear, however, that
the consistency of an employer’s responses to union-related
and nonunion employee conduct is measured not by whether
the employer or Board 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. Because Guard
Publishing itself, like this case, involved use of company email,
speculation as to whether the Board might apply a different
standard in cases not involving “the use of employer
equipment,” Resp’t Br. 18, is of no moment here.
Turning to the policies and rationales in this case, we
conclude that the Board’s decision that T-Mobile’s responses
to Befort did not discriminate against Section 7 activity is not
supported by substantial evidence.
1. In defense of its reactions, T-Mobile has invoked
three company policies that were in place when Befort sent her
email. The first is T-Mobile’s Acceptable Use Policy,
specifically the ban on junk mail. The second is its No
Solicitation or Distribution Policy. And the third is its
Enterprise User Standard. But, apart from general suggestions
of a policy against solicitation, T-Mobile’s contemporaneous
responses to Befort’s email did not clearly cite any of those
three policies. Nor did the Board rely on any of the three
policies in reversing the ALJ. T-Mobile relied chiefly on a
16
claimed prohibition on mass emails, discussed in the next
section, and raised the Acceptable Use Policy for the first time
only after the Union brought its unfair labor practice charges.
Nonetheless, T-Mobile continues to argue that Befort’s email
was barred by existing policies. Its claims on that front come
up short.
According to factual findings by the ALJ, left undisturbed
by the Board, neither the Acceptable Use Policy nor the No
Solicitation or Distribution Policy applied to Befort’s email,
meaning that T-Mobile’s decision to discipline her “could not
constitute a neutral application” of those policies. Guard
Publ’g, 571 F.3d at 59. (More on the third policy in a moment.)
T-Mobile argued that Befort’s email was prohibited “junk
mail” under the Acceptable Use Policy, but the ALJ concluded
that the email did not meet “commonly accepted definitions”
of that term. T-Mobile I, 369 N.L.R.B. No. 50, slip op. at 15
(J.A. 26). As a result, she noted, “application of the policy was
not warranted.” Id. And, contrary to T-Mobile’s claim under
its No Solicitation or Distribution Policy, the ALJ also found
that the email did not meet “the accepted definition of
solicitation.” Id. at 16 (J.A. 27). Rather, in the email, “Befort
asked [her coworkers] to attend a social function to find out
more about joining the union.” Id. “Because [T-Mobile]
misclassifies the email as solicitation,” the ALJ held, it
“disparately enforces the rule against the email.” Id. T-
Mobile’s failure to challenge factual findings by the ALJ
incompatible with its position defeats its continued reliance on
those two policies.2
2
The Board claims that reliance on the ALJ’s factual findings is
generally misplaced in this case because the ALJ issued her decision
under a legal framework governing an employee’s right to use an
employer’s email system that was subsequently overruled by the
Board. See Caesars Ent., 368 N.L.R.B. No. 143, slip op. at 1
17
T-Mobile focuses its attention on appeal on its third cited
policy, the Enterprise User Standard, which the company
claims effectively imposes a restriction on mass emails.3 T-
Mobile notes that Befort lacked access to a facility-wide email
distribution list that would have allowed her to email all of her
coworkers in one go. Under the Enterprise User Standard,
“[u]sers must follow the appropriate authorization process for
requesting an account granting specified access and permission
levels.” J.A. 206. The Standard states that “[a]ll access that is
not explicitly authorized is forbidden.” Id. T-Mobile contends
that Befort “circumvented her lack of access to the distribution
list,” Intervenor Br. 12, by sending separate emails as a way to
contact all of her coworkers with the same message, which it
appears to argue violated the Enterprise User Standard’s
limitation on access. See id. at 8 (“[T]he fact that Befort
successfully defeated the restrictions does not equate to
authorization.”).
T-Mobile’s reliance on the Enterprise User Standard fails
for at least two reasons. First, the Board did not itself hold that
the Enterprise User Standard covered Befort’s email, instead
rejecting evidence of disparate treatment based on its own line
between permissible and impermissible mass emails, discussed
below. It was by reference to such a line, not the Enterprise
User Standard, that the Board concluded that the record lacked
substantial evidence that T-Mobile “discriminat[ed] . . . along
(overruling Purple Commc’ns, Inc., 361 N.L.R.B. 1050, 1050
(2014)). But the Board did not respond to the specific factual
findings that undermine its analysis nor explain how the legal change
it references could have affected the underlying factual realities.
3
Unlike with the findings regarding the Acceptable Use Policy and
the No Solicitation or Distribution Policy, the ALJ rejected T-
Mobile’s reliance on the Enterprise User Standard by applying a
standard from Purple Communications, which, as discussed supra
note 2, the Board later overruled in Caesars Entertainment.
18
Section 7 lines.” T-Mobile I, 369 N.L.R.B. No. 50, slip op. at
3 (J.A. 14).
Second, even assuming the Board did implicitly accept T-
Mobile’s claim that the Enterprise User Standard applied to
Befort’s email, substantial evidence does not support that
finding. T-Mobile does not explain how, simply because
sending several emails to many employee addresses at once can
achieve a similar result as would sending a single e-mail to an
employer-created distribution list, the former constitutes
unauthorized access. T-Mobile failed to produce any evidence
that it had ever previously enforced the Enterprise User
Standard against unauthorized use of distribution lists (let alone
against separately compiled approximations), or that the
Standard actually barred sending separate emails to groups of
coworkers who match those jointly accessible via a limited-
access distribution list. T-Mobile acknowledged that no policy
prevents a customer service representative in Befort’s position
from sending group emails including as many as a hundred
people. And the automated response Befort received when she
tried to send her emails to more than one hundred coworkers
stated she should “try to resend with fewer recipients,” J.A.
228, which is exactly what she did.
There is no suggestion that Befort somehow violated the
authorization process for access to her email or exceeded
“specified access and permission levels” by breaking into a
distribution list or any other component of the email system.
Cf. Van Buren v. United States, 141 S. Ct. 1648, 1657 (2021)
(“In the computing context, ‘access’ references the act of
entering a computer ‘system itself’ or a particular ‘part of a
computer system,’ such as files, folders, or databases.”). Under
that set of facts, we decline to fill in the Board’s silence on how
Befort’s email implicated the Enterprise User Standard. We
see no record basis upon which to credit T-Mobile’s theory that
19
Befort’s use of multiple emails somehow constituted
unauthorized access.
2. T-Mobile’s contemporaneous rationales for
reprimanding Befort for her email also fail to support its
actions. The primary reason the company gave at the time was
that the email was a “mass” email. Specifically, in a facility-
wide message disapproving of Befort’s email, Elliott, the
center’s director, asserted that “[w]e don’t allow mass
communication for any non-business purpose.” J.A. 181. The
talking points that Maron brought to her meeting with Befort
included a similar statement.
The ALJ found that this claimed prohibition on mass
emails was a new workplace rule and that it was promulgated
unlawfully in response to union activity. But even if the
statement reflected some type of preexisting, permissible,
unwritten company practice or policy, as T-Mobile appears to
contend, record evidence shows the rule was disparately
enforced against Befort’s email. For instance, the ALJ found
that a non-supervisory senior representative at least once
emailed the entire call center asking about a lost phone charger,
and that customer service representatives used the reply-all
function in response to facility-wide emails containing birth
announcements, or baby shower or death notices. The ALJ also
found that T-Mobile had failed to demonstrate that
management’s mass emails about, for instance, snacks in the
office, free hockey tickets, and employee salsa-making and lip
sync contests served a business purpose. Elliott’s statement, in
other words, was “inconsistent with [T-Mobile’s] practice of
permitting other [non-business-related mass emails],”
including emails from non-managerial employees like Befort.
Guard Publ’g, 571 F.3d at 60.
20
The Board does not dispute that at least some of the emails
it recognizes were of the character Elliott claimed was barred.
The Board instead contends that substantial evidence supports
its finding that the emails “were not similar in character to
Befort’s.” T-Mobile I, 369 N.L.R.B. at 3 (J.A. 14). To that
end, the Board downplays other emails in evidence as “just
nine examples of nonwork-related mass emails that were sent
to the entire facility, most of which were sent on behalf of the
Employer itself.” Resp’t Br. 24. Even that characterization
overlooks types of personal-milestone emails like birth
announcements and death notices; copies of those emails are
not in the record, but the ALJ found based on T-Mobile’s
admissions and employees’ testimony that they had been
allowed.
The Board rests on the line it drew post hoc between
“emails that [T-Mobile] sent for its own business-related
interests” and “mass emails [that employees sent] for their
personal benefit . . . [or] to further [an] organizational
purpose.” T-Mobile I, 369 N.L.R.B. No. 50, slip op. at 3 (J.A.
14) (emphasis added). T-Mobile now picks up on that post hoc
distinction, highlighting the lack of evidence that employees
had “ever been permitted to send a mass email on behalf of, or
in support of, any outside organization.” Intervenor Br. 7.
Elliott himself drew no such fine line, however, instead
categorizing as impermissible “mass communication for any
non-business purpose.” J.A. 181. T-Mobile and the Board
recast the ban on “mass communication for any non-business
purpose” in an effort to address evidence of the mass emails
that it permitted, distinguishing them as serving T-Mobile’s
own “business-related interests.”
Only with that post hoc refinement of T-Mobile’s rationale
does the Board or T-Mobile claim to be able to distinguish non-
business emails about free popcorn and slushies and birth
21
announcements from Befort’s email. T-Mobile I, 369 N.L.R.B.
No. 50, slip op. at 3 (J.A. 14). According to the Board, such
emails “foster employee morale.” Id.4 But even that belated
distinction does not successfully address all the emails T-
Mobile permitted. In describing permissible emails as those
management sent for its own business-related interests, the
Board fails to account for replies to emails announcing
personal milestones that were sent by customer representatives
no different from Befort. And an employee’s query whether
anyone had seen their lost charger is most obviously for the
employee’s “personal benefit,” putting it on the impermissible
side of the Board’s line. Id.
T-Mobile’s stated rationales for reprimanding Befort do
not just fall short as neutral explanations for its actions; they
provide affirmative support for the union’s claim that the
company singled out Befort’s email based on its union content.
Aside from Elliott’s email, the only other explanation T-
Mobile gave Befort after she sent her email was in a meeting
with her manager, Lillian Maron. According to Befort, whose
testimony the ALJ credited over Maron’s, Maron said that
customer service representatives “cannot send out mass emails
and that anything union-related cannot be sent while on the
clock.” J.A. 52 (emphasis added). When Befort pointed out
that she was not on the clock when she sent her emails, Maron
countered that recipients of the email were on the clock when
they opened and read the email. Maron further stated that
“anything union-related could not be done . . . by using the
company’s email system[.]” Id. If T-Mobile had an unwritten
and unenforced rule against mass mails, then, Maron’s
statements suggest “only one explanation [for enforcing it
4
The Board did not challenge the ALJ’s finding that T-Mobile failed
to demonstrate “that slushies, popcorn, and lip sync contests actually
elevate employee morale at [the call center] beyond the moment of
the event.” Id. at 16 (J.A. 27).
22
against Befort]: she had used the system for dissemination of
union information.” Guard Publ’g, 571 F.3d at 60 (cleaned
up). This despite the fact that, as the Board acknowledges, T-
Mobile allows other personal uses of its email system; such
permission is explicit in the Acceptable Use Policy.
Other actions taken and statements made by T-Mobile in
response to Befort’s email likewise reflect a singling out of
union content. The Third Party Activity Report that it
generated in response to Befort’s email, for instance, is an
action T-Mobile acknowledges taking only in response to
union activity. And, as the Board explained with regard to the
lone issue on which it affirmed the ALJ, T-Mobile violated the
Act, including through Elliott’s email, when it told its
employees that they could not talk about the union during
worktime despite permitting discussions of other nonwork
subjects during worktime. See T-Mobile I, 369 N.L.R.B. No.
50, slip op. at 1 (J.A. 12); see also Oberthur Techs. of Am.
Corp. v. NLRB, 865 F.3d 719, 724 (D.C. Cir. 2017) (“It is well
established that an employer’s warning directing employees to
‘cease Union-related discussions only’ constitutes a Section
8(a)(1) violation.”).
Based on the evidence of disparate treatment of Befort’s
email and related facts suggesting a singling out of the union,
“substantial evidence does not support the Board’s
determination that [Befort] was disciplined for a reason other
than that she sent a union-related email.” Guard Publ’g, 571
F.3d at 60. The Board sidestepped those facts only by relying
on the type of post hoc distinction that we deemed
impermissible in Guard Publishing. We thus grant the Union’s
petition for review.
23
B. Remaining Claims
In addition to its discrimination claim, the Union
challenges the Board’s resolution of three other unfair labor
practice claims related to Befort’s email. Its first two
challenges are to the lawfulness of restrictions on the ability of
T-Mobile employees to communicate about the Union, as
stated by Elliott in his June 2 email; the third concerns a
statement by Maron to Befort in their meeting that the ALJ
found was coercive. In light of our discrimination holding, we
grant the Union’s petition for review on each of these partially
overlapping claims as well.
After holding that T-Mobile did not unlawfully
discriminate, the Board stated that the lawfulness of T-
Mobile’s conduct with regard to the additional allegations was
“dependent on whether Befort had a Section 7 right under
Caesars Entertainment to use her work email to send her
message to her coworkers about joining the Union.” T-Mobile
II, 369 N.L.R.B. No. 90, slip op. at 1 (J.A. 37). Because there
was no evidence that this case implicated a limited exception
to Caesars that permits employees access to company email for
non-business (including union-related) use where employees
“would otherwise be deprived of any reasonable means of
communication with each other,” the Board concluded that
“Befort did not have a Section 7 right to use her work email to
send her messages to her coworkers.” Id. In other words, T-
Mobile “was entitled to exercise its property rights to restrict
Befort’s use of its email system for that purpose.” Id. Based
on that conclusion, the Board rejected the Union’s claim that
T-Mobile violated Section 8(a)(1) by announcing the
workplace rules in Elliott’s email and by telling Befort that
employees could not send mass emails or union-related emails
to coworkers’ work email addresses. Id. The Board held that
those actions were taken “in response to Befort’s impermissible
24
use of its email system in light of [T-Mobile’s] lawful
restriction, and not because she had engaged in any protected
activity.” Id.
1. The Union’s first two claims are based on three
restrictions on communication included in Elliott’s email. The
first is a rule against mass emails, based on Elliott’s statement
that “[w]e don’t allow mass communication for any non-
business purpose.” J.A. 181. The second is a rule against
social media use during work, based on his statement that
employees are permitted to “use social networks—off the job
of course.” Id. And the third is a rule against discussing the
Union during work, based on his statements that “[e]mployees
have countless opportunities to communicate with others when
they are not working—about the union or anything else”—but
that “it is not appropriate to solicit or discuss other issues when
you are supposed to be working.” Id. Elliott testified that those
rules did not alter existing T-Mobile policies, but the ALJ
found otherwise, and the Board in its supplemental decision
seems to have accepted the ALJ’s finding. T-Mobile II, 369
N.L.R.B. No. 90, slip op. at 1 n.1 (J.A. 37) (referencing the
“new workplace rules”).
Section 8(a)(1) of the NLRA states that it is an unfair labor
practice “to interfere with, restrain, or coerce employees in the
exercise of” their organizing rights. 29 U.S.C. § 158. Board
precedent not challenged here identifies distinct circumstances
in which maintenance of even a facially neutral workplace rule
can violate Section 8(a)(1). One such circumstance is where
“the rule was promulgated in response to union activity.”
Boeing Co., 365 N.L.R.B. No. 154, slip op. at 1 (Dec. 14, 2017)
(quoting Lutheran Heritage Village-Livonia, 343 N.L.R.B.
646, 646-47 (2004)); see also AdvancePierre Foods, Inc., 366
N.L.R.B. No. 133, slip op. at 1-2 n.4 (July 19, 2018). Another
such circumstance is where the rule is overbroad. To assess
25
overbreadth, the Board asks whether a facially neutral rule,
“when reasonably interpreted, would potentially interfere with
the exercise of NLRA rights.” Boeing, 365 N.L.R.B. No. 154,
slip op. at 3. If a rule “would not prohibit or interfere with the
exercise of NLRA rights, maintenance of the rule is lawful
without any need to evaluate or balance business justifications,
and the Board’s inquiry into maintenance of the rule comes to
an end.” Id. at 16. If it would prohibit or interfere with the
exercise of NLRA rights, the Board then balances “the nature
and extent of the potential impact” on those rights against the
“legitimate justifications associated with the rule.” Id. at 3.
“[T]he rule’s maintenance will violate Section 8(a)(1) if the
Board determines that the justifications are outweighed by the
adverse impact on rights protected by Section 7.” Id. at 16.
The parties agree that the lawfulness of the new rules on
the first issue—whether they were “in response to union
activity”—rises or falls with whether T-Mobile’s responses to
Befort’s email were discriminatory. That is to say, if T-Mobile
discriminated against union activity in reprimanding Befort,
the rules that it promulgated in the course of doing so were part
of its reaction to union activity. If, on the other hand,
substantial evidence supports the Board’s determination that T-
Mobile did not discriminate, then substantial evidence supports
its finding that the rules were instead promulgated “in response
to Befort’s impermissible use of [its] email system.” Id. at 1.
Because we grant the petition on the discrimination issue, we
also hold that the rules were impermissibly promulgated in
response to Section 7 activity.
As to overbreadth, the Board reversed the ALJ’s finding
that rules prohibiting mass emails and use of social media at
work were overbroad because the Board thought employees
would not reasonably interpret them to interfere with NLRA
26
rights. Id. at 1 n.1.5 The Board’s holding followed from its
conclusion that the rules were not issued in response to union
activity. “Because [T-Mobile] sent its email in response to
Befort’s violation of several of its policies,” it held, “all of the
employees reasonably knew that [T-Mobile] promulgated its
rules . . . because of Befort’s improper use of its email system,
and not because she had engaged in any protected activity.” Id.
The Board’s rejection of the Union’s overbreadth claim
rests on the premise that Befort had no Section 7 right to use T-
Mobile’s email system. That reasoning falls short in light of
our discrimination holding. Under Caesars Entertainment, a
company still violates the Act if it restricts employee use of IT
resources in a union-targeted or discriminatory fashion. See
368 N.L.R.B. No. 143, slip op. at 8. That is what T-Mobile did
here. Before Elliott’s email, T-Mobile did not, in practice, bar
mass emails, and both written policy and company practice
permitted employee use of social media at work. Elliott’s
email announcing new restrictions on those activities was a
response to union activity, as we have already held. It is thus
unclear in what way employees could interpret the restrictions
not to “interfere with the exercise of NLRA rights,” such as
communications about the Union like Befort’s. Boeing, 365
N.L.R.B. No. 154, slip op. at 3. Because the Board reached
only the first part of its overbreadth test, we remand for the
5
With regard to the restriction on discussing the union in the
workplace, the Board affirmed the ALJ, holding that, in its responses
to Befort’s email on June 2 and other conduct not relevant to these
petitions, T-Mobile “violated Section 8(a)(1) by telling employees
that they could not talk about the Union during worktime in working
areas despite permitting discussions of other subjects ‘not associated
or connected with their work tasks.’” T-Mobile I, 369 N.L.R.B. No.
50, slip op. at 1 (J.A. 12) (quoting Jensen Enterprises, Inc., 330
N.L.R.B. 877, 878 (2003)).
27
Board to consider the remainder in the first instance in light of
our decision.
2. Lastly, the Union claims that the Board erred in
reversing the ALJ’s finding that Maron’s statement that Befort
“was prohibited from sending Union-related emails to
employees’ work email addresses” was coercive. T-Mobile I,
369 N.L.R.B. No. 50, slip op. at 18 (J.A. 29). The ALJ so
found, citing then-controlling Board precedent that held
employees have a right under the NLRA to use company email
for Section 7 communications during nonworking time.
Caesars Entertainment overruled that precedent and, as part of
its analysis upholding the email and social media restrictions,
the Board reversed the ALJ’s finding.
To evaluate a claim that an employer communication was
coercive under Section 8(a)(1), we ask whether, “‘considering
the totality of the circumstances,’ [the] employer’s statement
‘ha[d] a reasonable tendency to coerce or to interfere with’ an
employee’s Section 7 right to communicate about the union.”
Oberthur Techs., 865 F.3d at 724 (quoting Tasty Baking Co. v.
NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001)). The Board
briefing does not independently address Maron’s statement,
but its position seems to be that it was not coercive because it
was made in response to “Befort’s impermissible use of [T-
Mobile’s] email system.” T-Mobile II, 369 N.L.R.B. No. 90,
slip op. at 1 (J.A. 37); see Oral Arg. Tr. 32. As explained
above, that rationale falls short. Even though, under Caesars,
Befort lacked a statutory right to email use for Section 7
activity, T-Mobile itself permitted its employees to send union-
related emails to work addresses, as the talking points Maron
brought to her meeting with Befort expressly acknowledged.
Maron’s prohibitory statement thus lacked a basis in T-Mobile
policies, and the Board failed to identify any ground for
28
reversing the ALJ’s finding that it was coercive. We
accordingly remand for the Board to reconsider its reversal.
* * *
For the foregoing reasons, we grant the Union’s petitions
for review and remand the case for further proceedings
consistent with this opinion.
So ordered.