United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 22-1275 September Term, 2023
FILED ON: NOVEMBER 3, 2023
T-MOBILE USA, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
INTERVENOR
Consolidated with 22-1309
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Before: MILLETT and PILLARD, Circuit Judges, and ROGERS, Senior Circuit Judge
JUDGMENT
This appeal was considered on the record from the National Labor Relations Board and on
the briefs of the parties. See D.C. Cir. R. 34(j). The Court has accorded the issues full
consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R.
36(d). It is hereby
ORDERED AND ADJUDGED that the petition for review be DENIED and the National
Labor Relations Board’s cross-application for enforcement be GRANTED.
In 2015, T-Mobile USA, Inc. (T-Mobile) reprimanded call center employee Chelsea Befort
for sending emails inviting employees to join union-organizing efforts. In Communications
Workers of America v. NLRB (CWA), 6 F.4th 15 (D.C. Cir. 2021), we held that the National Labor
Relations Board (the Board) lacked substantial evidence to support its ruling that T-Mobile’s
response to the email comported with the National Labor Relations Act (the Act). Id. at 18.
T-Mobile had argued that it reprimanded Befort not because the email was union-related
but because it violated various company email policies. Id. at 25. The company claimed that one
of those policies, the so-called Enterprise User Standard, “effectively impose[d] a restriction on
mass emails.” Id. We determined, however, that “T-Mobile’s reliance on the Enterprise User
Standard fail[ed] for at least two reasons.” Id. at 26. First, we observed that “the Board did not
itself hold that the Enterprise User Standard covered Befort’s email.” Id. Second, we explained
that, “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.” Id. We
then concluded: “Under that set of facts, we decline to fill in the Board’s silence on how Befort’s
email implicated the Enterprise User Standard.” Id. We therefore granted the union’s petitions
for review but remanded to the Board for further consideration of two separate issues its prior
disposition had left undecided. Id. at 28, 30-31.
On remand, the Board “accept[ed] as the law of the case” that T-Mobile disparately
enforced its email policies against Befort based on her union activity. T-Mobile USA, Inc., 369
N.L.R.B. No. 163, slip. op. at *6, 2022 WL 5148159 (Sept. 30, 2022). It then resolved the two
remanded issues in favor of Befort. Id.
T-Mobile now petitions for review of the Board’s decision on remand. The company does
not take issue with either of the Board’s holdings relating to the two remanded issues. Instead, T-
Mobile argues that “[t]he Board erred when it declared as ‘the law of the case’ that Befort’s email
did not violate the Enterprise User Standard and that T-Mobile applied the Standard in a
discriminatory fashion.” Pet’r’s Br. 12. The company seizes on our language from CWA that we
would not “fill in the Board’s silence” as to whether Befort’s email was covered by the Enterprise
User Standard. Id. at 1 (quoting CWA, 6 F.4th at 26). In the company’s view, we left that question
“open” for the Board to resolve. Id.
T-Mobile is wrong. We did not leave that question open. We squarely held that “T-
Mobile’s reliance on the Enterprise User Standard fails.” CWA, 6 F.4th at 26. T-Mobile had no
difficulty understanding that holding in its unsuccessful petition for rehearing en banc, in which it
recognized that CWA “rejected the applicability of the workplace policies that T-Mobile had
invoked.” Pet. for Reh’g En Banc at 4, CWA v. NLRB, Nos. 20-1112 & 20-1186, ECF. No.
1913082 (D.C. Cir. Sept. 7, 2021). The sentence on which T-Mobile hangs its current appeal—
that we would not “fill in the Board’s silence”—was not an invitation to the Board to expound on
whether Befort’s email was covered by the Standard. Rather, the sentence observed that the record
was devoid of evidence that the Standard applied to Befort’s conduct, meaning that T-Mobile had
failed to bear its burden to show that Befort’s email implicated the Enterprise User Standard.
Our remand was limited to two issues identified in our prior opinion. Because T-Mobile
raises no challenge whatsoever to the Board’s rulings on those issues and the Board properly
adopted our holding in CWA as the law of the case, we deny the petition and grant the Board’s
cross-application for enforcement.
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Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate until seven days after resolution of any timely petition
for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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