morning and morning please proceed thank you good morning and may it please the court matthew ginsburg on behalf of the petitioner communications workers of america your honors team mobile told employee chelsea baffert that it was reprimanded reprimanding her for sending an e mail to her coworkers because that e mail concerned the union that alone constituted a violation of the n l r and in addition to this direct evidence the circumstances also strongly suggest that team will discriminated against baffert because of the union content of her message to mobile routinely permitted other employees to send email invitations to personal events like birthday parties and baby showers only baffert invitation to a weekend social event at a bowling alley was singled out for censure and that was because t mobile perceive the events as a union meeting the company's after the fact explanations for its actions are whol implausible and strongly suggest pretext t mobile acknowledged as it never previously applied any of the policies invoked as reasons for reprimanding effort and t mobile is characterization of the efforts email as quote unquote junk mail highlights the fact that the company targeted deford's e mail because it disagreed with her message the board's dismissal of the discrimination claim in the face of all this evidence was based on a fundamental legal error the board held that the general counsel failed to meet it burden of showing that t mobile quote permitted employees to send mass e mails for their personal benefit or quote to further any organizational purpose but t mobile did not prohibit e mails on either ground and did not justify its action on either basis i think i understood the board to say because we adopted a new standard in the middle of this case we're going to apply that standard because we've held that that standard applies retroactive and the union never challenge that before the board and therefore as it were arguably it stuck with that rule  applies retroactively so the board says applying that rule the general counsel failed to me is going to show that the employer discriminatorily a pplied its policies why is that either legal error or factual error by the board so your hon i with respect i don't think that i i i i don't do not think that's actually the board's argument i believe that the board's argument is that the board applied the register guard standard  let me put it this way yes i'm reading the board's decision and i'm looking at what it said and that's what my question is based on right ok so as the as we explained in the reply brief and in fact this is as the employer said as well the discrimination standard has not changed from register guard to purple communications to the current board decision that of caesar's entertainment although that's a legal error by the board in how it interprets its precedent if the board says that it's changed its precedent in the i just i have with all respect i don't see in the board's decision anywhere where it says it's changed it's it's discrimination rule  horizon but it says we have overruled purple communications and in caesar's educate him and we adopted this rule and you cannot discriminate basically it says  as far as section seven is concerned oh unless you can show that the employer allowed something that was of the same character and now it's disallowing it yes and and so that i agree that is the board's legal test i guess the only point of disagreement with the interpretation that that we're having is that i believe that real legal test is clear in register guard discrimination standard which which hasn't changed and i don't think the board in its decision was suggesting it had changed but what were quarreling with is that we think the board has misstated what that standard is going all the way back to register guard and so communications of a similar character because of their union or under section seven protected status you would agree that that's the standard under boy president yes i we agree that's the standard we just think that when the board then goes in the next paragraph and says that what that means is that the union has to show that the employer permitted employees to send e mails for personal benefit organizational purpose that's not a correct application of that standard under this court's case law review of register guard itself that is a i'm trying to understand that's a legal and that's a factual error in paragraph correctly stating the broad rule it must be similar activity then restates it in a way that is error and its error in exactly the same way that the board erred and register guard and this court reversed in part in its decision in guard publishing which is to say that the similar activity turns on you know the question of similarity as as judge easterbrook sort of famously put it in the guardian publishing decisions that preceded this court's decision and guard publishing you have to look at what is the baseline for comparison and for example when we use this example in the in the brief in in register guard the board said well that union email was for it was for an organizational purpose so that the employer was permitted to prohibit it this court said well wait a nd now you have to look at the board's rule the only the employer's rules to see what the baseline of comparison is in that case the employer rule was no solicitation generally so that the employer picking and choosing on the basis of organizational status was applying the wrong baseline so they were applying the discrimination rule incorrectly and that's that's exactly what the board has done here the board has said the general rule you have to look at whether the communications are of similar character but then when it goes to apply it it puts this gloss this legal gloss on it of organizational purpose or personal benefit which has no basis in the employer's rule here there's nothing in the employer's rule about those things and the employer in fact hasn't sought to justify its actions on those bases at all so that's a legal error and then all the factual fine of course once you have that fundamental of what the standard is then trying to apply that to the facts creates all sorts of problems because we think the discrimination is clear here when you correctly apply the legal test i hope that answers your question because the baseline is the so the baseline so i want to if i may i'd like to take a half a step back in answering your question you know like any discrimination case there's a variety of evidence here there's the direct evidence the stated reason that contemporaneous stated reasons the employer gave for its actions which in this case all involved it was union activity so we think i am not bound to bet on that but ok go ahead and then you have the circumstantial evidence which goes to the comparative and the compare compared errors are based on what the employer's rules were here or what we know about the employer's rules is that they just they generally allowed personal use of e mail and there's evidence for example of invitations to other non work social events like birthday parties and baby showers and so we you know our argument is that this is similar this is an invitation to a weekend social event at a bowling alley yes it was to talk about working conditions but it's similar in all meaningful ways under the the employer's policy is what that permitted then the  piece of evidence is then the employer after the fact comes in and points to some of its policies and says no that wasn't permitted under these other policies and we think that as the o j found in the board doesn't disturb this that we think there's that just slows pretext i mean this is not junk mail with in any meaningful sense of junk mail which is the main policy the employer pointed to here so there's sort of three buckets of evidence the direct evidence the circumstantial evidence and the pretext evidence sufficient for a title seven case when you are presented with these different buckets of evidence that would all point in the same direction and that's that's how we present i think i'm structuring it slightly different lay you know rather than direct circumstantial and thinking about it as what are we measuring it again we're measuring the employers contacts as you know it's prevented by the policy well that's one thing you could tell me discrimination under the policy then we have to look at well you know employers can do things other than what's in their policy and we have to evaluate those for whether they're being done in a discriminatory here eliot gives a bunch of reasons that i guess i have a little bit of a difficult time understanding how what elliot said for the st time in his email after the fact should why that should be considered part of the employer's policy that we use as a basis for comparison since obviously and that is you know not as you can sort of condense it is that he's saying you know about the union are not appropriate and i'm not sure that's a fair r was in individually counseled by her team manager miss lilly enron and it was and was all about the union nature of the e mail and when and when you can send e mails and you can she said you couldn't you couldn't use at one point she said you could not i did i misspoke i meant those two pieces of evidence which occurred on the same day those were the two those were the two interactions that occurred contemporaneously or immediately after misspent for center e mail the following tuesday that following tuesday she was coun the facility why the e mail from allie went out on the same day in fact she got back to a desk for her counseling and had received elliot's e mail so i said which take those together as contemporaneous evidence that what the employer was focused on was that the union nature of the e mail i know i'm into i'm past my time i'm of course happy to answer questions from the panel but i have i have to about that kind of secondary issues in this case sure where you finish judge dillard yeah go later promulgated in response were also lawful and now your honor and as we explain particularly not reply brief also interrupting grief if everybody agrees all sides agree that if you agree with us on the discrimination issues then the follow on rules i know my question is right if we disagree with you on the st right so then then you have to look at the lawfulness of the of those rules per se and as we of all that's totally contradictory to what the written policy is which from from its set and i appreciate it and i recall that part of your brief and i just want some quick clarification on whether you are making concession not and you're not which i think we are not a while why is that a tactical decision to not make that decision my nd my last question is i take it that it's it's not lawful for an employer to homologate rules in response to statutorily protected union activity but if we conclude that the employer here promulgated new rules in response to union activity that was not statutorily protected that lawful so this sort of merges with my prior answer is part of the it's part and parcel of the analysis of the rule of the law ss of the rule because the analysis it's going to be case by case it's it will sometimes be lawful for an employer to promulgating new rules in response to union activity that was not statutorily protected and sometimes it will not be lawful depending on the role of that's correct your honor and i actually have more that that's fine by me but i'm i'm finished with my questions no that's that's not that's correct or all right thank you thank you why don't we hear i think it might be most helpful for me to start by clarifying what the legal standard in this case actually is and as a preface to that the legal standard is not even probably before the court because neither aspect of it was challenged by board of health which is current law that employees do not have a statutory right to use their employer's e mail system presumptively and that an employer can restrict access to its e mail system for any reason or no reason at all with one exception at issue here which is that an employer may not do so in a manner that discriminates against section seven related activity and that goes to the nd aspect of the legal standard here which is the board's register guards standard which again was not contested by the union and it's not at issue before the court but nonetheless many of the unions arguments are essentially inconsistent or express disagreement with what the board register guard standard actually is so in register guards the board adopted a new standard for discriminatory enforcement specifically in that case it was also in the context of the male restrictions and what the board said standard where the general counsel has to show that the section seven related emails were prohibited but e mails of a similar character were previously alive so responding to some of the arguments that the union makes publishing the court did not suggest that it was you know taking issue with the standard chosen by the board and that's why as we point out in our brief i think the most reasonable way to interpret  publishing is that the court was essentially applying that standard and that that was ultimately a factual disagreement between the board in the court where the court found contrary to the board that and start publishing the employer had similar character so that's in our view just a factual disagreement rather than it legal disagreement however even assuming that the court were to read card publishing as applying a slightly different legal standard with regard to the baseline or otherwise again i would just point out that in this case the union did not challenge register guards for the board and so our position would still be that register guard is different prius legal standard under view in this particular case and with respect to the baseline in particular i think part of the union's disagreement with roger cigars it is it's focused on you know whether the prohibition of the e mails here were consistent with the terms of the employer's preexisting policies but as these the board noted roger sircar that is not the standard chosen by the board because for example if an employer could decide for the st time that it doesn't want to allow this type of being now even if there's nothing in a prior rule specifically referring to that i'm not i went necessarily concede that that is the case here but the relevant was suggesting in my questioning of mr grant is that the end of the matter then we look at what the employer representatives said when they disciplined apart right and in terms of those policies right well i've i'm not sure that the board adopted those findings to the board noted that it was only adopting they'll just findings as consistent with this opinion and the nails a was a fine purple and you know i would direct the corps to read registered are the board has a very clear analysis of the standard it was adopting and that a disparate treatment standard where the reference point is previous email allowed by the employer got its written policies or even be contemporaneous explanations given by the employer well that's where our way we have the guard publishing opinion which which does very explicitly say we look at the reasons tuesday that was sent on a monday and that's a union neutral rationale but that isn't going to cut it under guard publishing you're going to look at what the employer claimed with its interest and its reason and when you apply that to emails that were permitted and emails that nonunion emails and and union emails and if they're treated differently with respect to that rash then you have a case of discriminatory no well  i think our publishing can be read as consistent with registered are to the extent that it is not i would again note that the the union did not request a challenge register guard in this case for the border say that the board should have applied a slightly different analysis to the extent dark publishing is different again i think our publishing ultimately it was just the court disagreeing with the board's factual findings that in that case there were no e mails of a similar character and part of that analysis was you know the board it there this evening the court did make reference to the explanations given by the employer but that's not necessarily part of the board's own standard register guards but even if it were your honor i would note that factually in this case you know that when mr elliott sent the e mail on to the employees in this case the focus of that e mail was that this was sort of an unprecedented situation of an employee sending mass e mails to hundreds of a covert verse and so and that you know there was an explanation given on life and our publishing itself where the employer did not really make any  not any evidence in the record in this case that the employer had allowed similar mass e mails to be sent to him always there is evidence of a small number of employees that were sent by the employer itself regarding things such as baby it's not a question of whether we can look back and make a distinction that the question of the distinction that the employment right well i'm not sure that the court it sounds like are publishing your honor because the issue of the legal standard justifies is not properly ultimately what should be controlling and that the court does not even need to get into any further analysis of police or standard in this case because in the board's view this is ultimately just a factual dispute and an application of the standard to the particular was that the standard is beside the point that the question is discrimination have the policies been discriminatorily appl if that's what you agree with then did not the board have to address you know in other words and maybe i just miss understand this case but given that as the union says there's no change in the standard in the sense it just went back to the pre purchase communications standard the board was finding that the record didn't show that there was a while ation of the act period in other words to put it very simply in a hypothetical suppose the employer had clearly been discriminating period for reason a the board says reason a is not discrimination because our standard requires you to show b standard because it's not shown to follow but i think the uni and is essentially arguing for a broader discrimination standard than what the board adopted and register dark which is that i understood and maybe i am incorrect is that when the board said in caesar's ringback entertainment that it was overruling purple communications it was shifting the burd there was no presumption in favor of the employees anymore that's correct so as the overarching question of whether employees have a statutory right to use the e mails at the match if it however register guard remains the discriminatory enforcement standard even under purple communications so that has not changed but the you know the initial for exemption of whether they have a right or not does change the overall analysis which is why dale j is analysis in this case you know was was looking in a different context than what the board was looking at but i guess do you think i just need to be clear are you in agreement with what i understood to be the premise of judge to learn to question that there's no disagreement about the standing question here is discrimination in whether or not the employer in those st two responses a supervisor then the director saw what they told the employee while i guess i would disagree with that your honor because i think i under the register card that's not the focus of the board standard for discrimination the board looks at is there a disparate treatment such that when the employer has chosen to prevent that these e mails now which the employer under siege of entertainment can do for no good reason or no reason at all you can simply say don't send these e mails and not provide any reasoning said so just to clarify back as i think we're getting some position sorry to jump in like that but in your view it doesn't matter whether there's any evidence incorrect or of the basis for team mobile decision not at the time i have had any interest or policy or ground that it was distinguishing between mass email for personal benefit that even under registered art of course the bard noted that you know if there's affirmative evidence of anti unanimous that that was the reason for it that's a separate issue yeah yeah but but when we're talking about comparing our evidence and circumstantial epidemic of discrimination so can you i mean i take your position is that it doesn't matter whether there is any such evidence but can you identify any evidence in the record for organizational purpose well yes i think that's a helpful question your honor because that against brings me to a point which i didn't address earlier which is that the union focuses a lot on that one sentence from the board's decision in this case as if that is the board modifying the legal standard in some way that's just the board making of a finding of fact essentially in this case that there are e mails of a similar character that's the ultimate standard under register and so it doesn't need to necessarily turn on this personal versus organizational distinction what the boers decision ultimately rested on here was that the in florida just had not allowed similar mass e mails like the ones that were sent here and and i think that's also consistent with the reasoning that the employer itself gave at the time i went to see the best part of the board's actual standard unregistered guard but i think all of the evidence here is consistent the employer decided that it did not want employees standing these kind of mass e mails as had never previously done so or necessarily been confronted with an employee doing so and so as the board found the general counsel failed to establish this discrimination exception to caesars entertainment by producing affirmative evidence of this for treatment so your answer communications for any non business purpose and the board finds that there were in fact several e mails sent that were for non work purposes and the reason that you don't find that to be evidence correct and also factually i think the employer did consistently make the argument that for example an e mail about a lost phone charger and even some of the camaraderie building no in the nd decision before the court where the board found that employees were not interpret any of these statements to be overbroad rules because they were all made in the context of  st e mails which the board found were unprotected for all the reasons we've been discussing and if we disagreed with you about the discrimination then the right course on that nd question would be to rem application bowing  to up to this point and i just wanted to point out a couple of things about the record before you st is you have more emails in the record from ms baffert both including the rejected emails in the email she successfully sent than you do have compared or you mails and you have ninety compared her emails all of which were sent to a w i c c everyone which stands for wichita call center everyone distribution list every person who sent those emails had authority and permission to send those emails on that service ms baffert did not eight of those were sent on behalf of management and when you talk about just to to take in the testimonies of all in the joint appendix the food announcements are all just reminders of things that were already on the calendar for employees the e mails regarding hockey tickets or incentive in morale purposes to the e mails or for ready signing the card of the c e o the birthday card of the c e o in two emails were for team building morale issues lipsync contests and salsa competition and the only email that doesn't really fit in that is the senior representative who sends for the last phone charger but he too had access to that and he also is clearly just seeking a last item on behalf of one of his teammates and that is  standards that's the policy against unauthorized access to accounts correct and also to the acceptable use policy both of which cover that and the no solicitation the fact that she was unable to she was able to figure out a way to copy and paste it doesn't mean that gave her permission to do it and that was all by the way the company told her to stop doing because you won't find an e mail in the record from a customer service rep back but was a customer service rep she was the only one who did this you won't find it compared e mails anything close to what happened this is a facility with hundreds of people and the policy that that prevents a customer service rep from sending an e mail to the number of people that she is able to access on her authorized account often is is well both the acceptable use policy with prevent essentially junk mail which is defined as mass e mails to people you don't know seeking things and the enterprise union standard which is which specifically says you have to have appropriate authorization and the authorization process to start with a remedy ticket and specific approvals from two mobile management was the under the acceptable use policy was did her e mail interfere with the use of the resources for legitimate business purposes that's not the part of that  policy or a line well if it didn't went way there is testimony that several people complained about receiving it which is you know how about t mobile became aware but i did it interfere with the use of their resources in an email system because you know you sometimes you can get spam i'm actual subject to an email attack right now and i can barely use my email because i get twice as m t you know this there is just something that there is nothing at all comparable to this in the record in and the board i think so found in wind when we talk about it you know at the end of their their decision they basically say there is no evidence and they basically there's no evidence responding permitted employees to send mass e mails for their personal benefit life's less for any organizational purpose that's i think the put saying look we don't even really have to get to read to register guard which is the the law because there's no there's just nothing here to compare to so it are you agreeing with mr weis that it that you basically regard publishing is not doesn't apply here or do you think you need guard publishing i think we need guard publishing i think garp publishing did not desire as i read that case did not and did not disagree with the board's standard and disagreed with the with the employer had allowed in not allowed it just and it was a factual disagreement was not a legal  employer here doesn't even have a post hoc rationalization the board attributes one to the employer and that's correct i don't think that they they attack the legal standard at all and i think you can read this board's decision though is saying look we don't even we can't we don't have to get there because there's nothing comparable to it there's just nothing there there's no mass email so that the distinction so that  how do you respond separately to them i am personally i don't i don't i do not see them as two separate issues i think the over the border if you're talking about the people and that it gets replaced by the next big fad so you have to sort of look at things in context of how the board's going to try to interpret thing is for the employer's perspective we always have to be very very mindful that that next big fat could be coming down the pipe i can change the law on this so you know what is overbroad today and coercive today may not be we never got there your honor because you know they under caesar's again if we're talking and i want to make sure i'm clear about what we're talking about we're talking about the supplemental decision in those but cesar's the board severed those allegations on the very limited basis of whether there was  alternate ability of employees to communicate and the general counsel had no other proof the union had no other proof and we submitted it which i actually just replicated at the last portion of our brief all of the evidence from all of the witnesses including bat baffert all the witnesses who were engaged in union activity who readily admitted that they had many alternate means of communication address in a nd if you look look at the evidence in this case and they all j's decision it was not you know was affirmed the facts were firm by the board at page joint appendix eighteen which is page seven of the board's decision he found another i'm quoting sent notification of birthday plans for another employee throughout the facility baby showers also may take place in which the staff holds a potluck dinner and people voluntarily purchase joint gifts so and a bowling invitation if done for recognition of work would be considered business related so there is evidence in this record of similar invitations misspent for it sent one email to each of her coworkers inviting them to a bowling social events to talk about working conditions and to have fun the following night one time and we think that even under elliot standard is clearly comparable and the testimony  the the there was plenty of testimony from doesn't unions witnesses and the employers witnesses that there was a lot of this sort of e mail that went around and that's the basis for the board's finding i would also just say that if you look at the guard this court's card publishing decision the court clearly looked at the employer's written rule as well as its explanation because the basis for reversing the board on the on on its finding that one  of the disciplines of the employee for sending a union e mail was was was reversing the board's finding that was lawful was because even though the employer said it was for an organizational purpose the rule set didn't speak about organizational purpose at all so it's we dispute that eliot could after the fact create a new rule when there is a written rule in place which is you just heard from counsel was the junk mail rule and the other rules they invoke that didn't apply so we don't think eliot can after the fact come in and create a new rule but even if even if if this court were to find that the evidence in the record shows lots of comparables and we think the way that the board treated that evidence with the way it applied the register guards standard way to explain what the guard and we have all the citations so i want there in our reply brief i could read them to you you know prominently cites this court's decision lucille salt of salt or packard children's hospital for what the basic discrimination standard is it adopts that standard and then when that comes up you know i mean there's there's a back and forth with this court over its application of the standard in that decision but we don't quarrel with that standard we just don't think what the board has done here is consistent with its register guard standard and that this court basically register guard the court the board stated a proper legal standard and then this court reversed because they they they didn't apply it properly and that's exactly what went on here they say they cite that same standard in the board cites that same standard it's decision at the top of the st column and page three of its decision and then goes on to change that standard by saying well you have to show organizational purpose or personal benefit that's almost exactly what the the boarded in register guard so we don't have a quarrel with the basic disparate treatment standard so so i say mr theodore have argued that under register guard it's more like a rational basis test than it is like a discriminatory horseman test and in other contexts they're basically saying you know conceive of a raise and apple to distinguish her email from emails that were permitted that is fine under registers are i i heard them say that there is no basis for that argument in the board's decision in this case in board's decision in register guard or in any court decision they have not the board has never adopted that position and in fact in this case when it cites the register guard standard again in the top left column on page three of its decision at joint appendix fourteen they cite the register guards standard and and that such that quote them so they quote the register guards that standard and that quotation comes directly from a site so this court's casing lucille salter packard children's hospital it's just a it's a very well established discrimination standard so if the board meant to adopt some new different standard other than that standard which has been in place for a long time they had to say so and they never did the only place they've said so with all respect to my opponent it isn't councils brief not in the board's decision or in any board decision you can see that the company does not have to distinguish math e mails that  are similar from the email in question at the county mobile i'm sure since a math e mail to its employees every day probably multiple times a day thousands of times a year and say you know we're changing the schedules everybody's coming in a half an hour early tomorrow that's that we don't consider that it's a relevant comparative or right and so then the question then becomes the eight to ten e mails about birthday gatherings i mean it's almost identical to what she did here with the only difference is that begs the question are they is it almost identical and what we think it is almost identical then you're on solid ground and we have to do a lot of other stuff but if we think that they're not identical if we think they're actually quite similar to the thousands of other workplace e mails that are sent then that's the end of the analysis correct that is correct i would just draw the court's attention again to to the a l j findings that page seven of its decision where he's specifically found that other employees for example sent notification a birthday plans for another employee throughout the facility that similar activities but i guess i guess the way and those are that but you said that if they're different then they aren't