United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2023 Decided January 12, 2024
No. 22-1310
T-MOBILE USA, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
INTERVENOR
Consolidated with 23-1002
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Mark D. Harris argued the cause for petitioner. With him
on the briefs were Mark Theodore and Shiloh Rainwater.
Greg P. Lauro, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Ruth E. Burdick, Deputy Associate General Counsel, David
2
Habenstreit, Assistant General Counsel, and Kira Dellinger
Vol, Supervisory Attorney.
Glenda L. Pittman and John Alexander van Schiack were
on the brief for intervenor Communications Workers of
America, AFL-CIO in support of respondent.
Before: SRINIVASAN, Chief Judge, GARCIA, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
Dissenting opinion filed by Senior Circuit Judge
RANDOLPH.
GARCIA, Circuit Judge: The National Labor Relations Act
protects employees’ rights to self-organize and choose
representatives to bargain with their employer. To that end, the
Act prohibits employers from dominating a “labor
organization,” which the Act defines as an employee group that
exists at least “in part” to deal with employers over working
conditions. 29 U.S.C. §§ 152(5), 158(a)(2).
In 2015, T-Mobile established an organization it called
T-Voice. The company picked employees—which it labeled
“representatives”—to comprise the group and told other
employees to use those T-Voice representatives to raise issues
with management. When the National Labor Relations
Board’s General Counsel charged T-Mobile with unlawfully
dominating T-Voice, T-Mobile argued that T-Voice was not a
labor organization because T-Voice representatives made
proposals to management individually, not as a group, and that
in any event most T-Voice proposals did not concern employee
working conditions. Because the Board reasonably rejected
those arguments as inconsistent with the Act and Board
3
precedent, we deny T-Mobile’s petition for review and grant
the Board’s cross-application for enforcement of its order.
I.
A.
T-Mobile is a national wireless telecommunications
carrier that operates 17 call centers across the country. At each
center, T-Mobile employs customer service representatives—
referred to as “CSRs” or “frontline” employees—to handle
customer calls.
T-Mobile established T-Voice in January 2015. The
organization’s charter stated that its mission was to “[e]nhance
Customers[’] and Frontline experience by identifying,
discussing, and communicating solutions for roadblocks for
internal and external customers” and to “[p]rovide a vehicle for
Frontline feedback and create a closed loop communication
with [the] T-Mobile [Senior] Leadership Team.” A761.
In June 2015, when T-Mobile expanded T-Voice to cover
all call centers nationally, an Executive Vice President at the
company emailed the following to all CSRs:
T-Voice is your voice—it’s made up of
Frontline Representatives from each call
center . . . . Their job is to raise Frontline and
customer pain points to ensure they are resolved
and then results are communicated back to the
Frontline . . . . You can raise issues by reaching
out to your T-Voice representatives. Be vocal,
let us know what you think.
A676. “Pain points” are perceived problems and complaints.
Customer pain points indirectly affect CSRs because they
result in service calls and customer irritation that CSRs are
4
tasked with handling. Frontline pain points more directly
concern terms and conditions of employment such as bonus
compensation and work schedules.
T-Mobile filled T-Voice with CSRs selected from
different shifts, call functions, and call centers and paid them
to serve as T-Voice representatives. As indicated in the email
above, T-Voice representatives primarily collected customer
and frontline pain points from fellow CSRs and presented them
to management.
T-Voice representatives collected pain points in several
ways. During “table days,” they set up a table and talked to
CSRs face-to-face. Representatives also arranged meetings
with small teams of CSRs at which they solicited pain points.
And CSRs could submit pain points via physical suggestion
boxes or to designated email addresses.
After they received pain points, T-Voice representatives
entered them into a database as conveyed by the submitter,
subject to minor grammatical or clarifying edits. T-Voice
representatives also submitted their own pain points. Once the
pain points were in the database, customer experience
managers evaluated them and entered a response, which the
T-Voice representatives then relayed back to the affected
CSRs.
T-Voice representatives also discussed pain points with
management in a variety of other ways. Sometimes, T-Voice
representatives emailed pain points directly to management.
Managers in charge of the T-Voice program also met with
T-Voice representatives during weekly, monthly, and annual
meetings. Weekly local meetings involved discussions with
site senior managers regarding the most significant or recurring
pain points. Monthly regional meetings involved sharing best
practices for gathering pain points.
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During monthly national telephonic meetings, T-Voice
representatives learned the resolution of the previous month’s
top three pain points and could ask questions or make
suggestions. For example, during the September 2015
meeting, a T-Voice representative suggested that the company
provide CSRs with a script explaining how phone exchanges
work. T-Mobile responded that it “will be” considering the
proposal and added it “to the list of things to relook at to ensure
[the company has] it properly covered.” A746. During the
January 2016 meeting, after receiving an update on T-Mobile’s
new device insurance plans, T-Voice representatives suggested
edits to the corresponding CSR training materials. T-Mobile
edited the materials accordingly. And during the March 2016
meeting, T-Voice representatives suggested that device
emulators be provided to CSRs to help them troubleshoot
problems with customers’ devices. The company promised to
provide an update on the proposal by the next month’s call.
These national meetings often included focus groups run
by a T-Mobile manager. During a January 2016 focus group
on coverage and network issues, T-Voice representatives
recommended on-site trainings for CSRs on coverage and
device compatibility, and “network-specific talking points to
help address customer questions/concerns.” A736. The
manager emailed notes from that meeting to the broader
T-Voice team and the company’s Customer Service Leadership
Team.
T-Mobile also held two national, in-person T-Voice
summits. All T-Voice representatives and many senior
managers attended these two-day events. The 2015 summit
included break-out sessions where focus groups of T-Voice
representatives addressed topics including “Employee
Engagement/T-Mobile Culture,” “Metrics,” “Systems/Tools,”
and “Frontline Readiness.” Notes from the “Metrics” focus
6
group indicate that T-Voice representatives made proposals for
changes to calculations of CSR performance metrics—for
instance, dropping the high and low scores on customer-
satisfaction surveys and excluding calls lasting less than 45
seconds from the calculation of another metric. The T-Mobile
Vice President who hosted the focus group and another senior
manager circulated the minutes to other managers
“[f]or our discussion.” A697.
Notably, T-Mobile sometimes announced to employees
that it had implemented proposals solicited through T-Voice
and credited T-Voice with those changes. In one illustrative
episode, a T-Voice representative emailed a Senior Vice
President to request 45 dual monitors for CSRs in a particular
department. T-Mobile considered and granted the request. The
company then credited the change to T-Voice, announcing in
its newsletter that the “T-Voice team was instrumental in
raising the need for dual monitors” and that “[s]olving this pain
point should lead to a happier, more productive workplace.”
A116, A683. T-Mobile also credited T-Voice with changes
involving, for example, an employee loyalty program that gave
CSRs milestone anniversary gifts, a charging station in the
employee break room, and free Wi-Fi access.
B.
The Communications Workers of America (“CWA”) has
attempted to organize CSRs at T-Mobile since 2009. In
February 2016, CWA filed an unfair labor practice charge
against the company. The Board’s General Counsel then filed
a complaint alleging, in relevant part, that T-Voice was a labor
organization under Section 2(5) of the Act and that T-Mobile
dominated T-Voice in violation of Section 8(a)(2) of the Act.
T-Mobile has never disputed that it dominated T-Voice. The
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only relevant dispute before the Board was whether T-Voice
qualified as a statutory labor organization.
An Administrative Law Judge (“ALJ”) held a four-day
trial and ruled that T-Voice was a labor organization. On
September 30, 2019, the Board reversed the ALJ. T-Mobile
USA, Inc. & CWA, AFL-CIO (“T-Mobile I”), 368 N.L.R.B. No.
81 (Sept. 30, 2019). The Board read its precedent to require
that a labor organization deal with management through “group
proposals,” and held that T-Voice did not satisfy that
requirement because T-Voice representatives submitted their
proposals individually rather than through a collective
mechanism. Id. at 8–9. CWA then petitioned our court for
review of the Board’s decision.
On April 16, 2021, we granted CWA’s petition for review
and remanded the case to the Board for further consideration.
CWA v. NLRB, 994 F.3d 653, 664 (D.C. Cir. 2021). Our
decision focused on “dueling lines of Board precedent” about
the “definitional requirement that a ‘labor organization’ must
exist for the purpose, at least in part, of ‘dealing with’ the
employer concerning conditions of work.” Id. at 659. We
noted that the Board’s decision was premised on the “view that
an organization does not engage in ‘dealing with’ an employer
unless it makes ‘group proposals’ to the employer” and that
“proposals from individual members of the group would not be
sufficient.” Id. at 660.
We agreed that the precedents the Board cited are
consistent with an interpretation of the “group proposals”
requirement that would “require some process for adopting or
advancing [proposals] as proposals of the organization.” See
id. at 662–63 (discussing Polaroid Corp., 329 N.L.R.B. 424,
429 (1999); EFCO Corp., 327 N.L.R.B. 372 (1998), enforced,
215 F.3d 1318 (4th Cir. 2000); E.I. du Pont & Co., 311
8
N.L.R.B. 893 (1993); Electromation, Inc., 309 N.L.R.B. 990,
994 (1992), enforced, 35 F.3d 1148 (7th Cir. 1994)). But we
also identified two other decisions the Board failed to consider:
Dillon Stores, 319 N.L.R.B. 1245 (1995) and Reno Hilton
Resorts Corp., 319 N.L.R.B. 1154 (1995). CWA, 994 F.3d at
662. In both cases, we explained, the Board found employee
groups were labor organizations without examining whether
proposals from members of the group had been “embraced by
the group through any formal process.” Id. at 663. In Dillon
Stores, the “dealing with” requirement was met even though
proposals were “‘advanced collectively’” only in the sense
“that the proposals were made ‘on a representational basis’” by
members of the employee group at issue. Id. at 662 (quoting
Dillon Stores, 319 N.L.R.B. at 1250, 1252). Similarly, we
observed that in Reno Hilton the Board found labor-
organization status where the employee groups “or their
members made proposals.” Id. (quoting Reno Hilton, 319
N.L.R.B. at 1156).
We further noted that, even in cases fitting the Board’s
new “group proposals” requirement, the Board had never “held
that an organization in which employee representatives make
proposals to management does not constitute a labor
organization unless those proposals are adopted by the group.”
Id. at 663. Such a requirement, we explained, would seem “in
tension” not only with Dillon Stores and Reno Hilton, but also
with precedent holding that a group “‘may meet the statutory
definition of “labor organization” even if it lacks a formal
structure.’” Id. (quoting Electromation, 309 N.L.R.B. at 994).
Separately, we noted that such a requirement “might be easily
circumvented and undermine the function of Section 8(a)(2),”
which aims to broadly preclude employer domination of
employee groups purporting to represent other employees. Id.
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We therefore concluded that the Board’s formal “group
proposals” requirement “broke new ground” and left
uncertainty “about what the record must show for the Board to
find that an organization made group proposals” and qualifies
as a statutory labor organization. Id. We remanded the case to
the Board to “reconcile” its precedent, id. at 655, directing it to
“identify what standard [it] has adopted for separating ‘group
proposals’ from proposals of employee representatives, like
T-Voice representatives.” Id. at 664. In doing so, we noted
that the Board’s precedent suggested two potential rules. First,
consistent with Dillon Stores, it might suffice that “an
employee representative makes a proposal while acting in a
representative capacity.” Id. at 663; see id. at 661–62. Second,
despite the possible difficulties we identified with such an
approach, we noted that perhaps the Board meant to require
something more, “such as a formal vote adopting the proposal.”
Id. at 663.
On remand, the Board effectively endorsed the first option,
finding that the “group proposals” requirement for dealing is
satisfied if individual group members acting in a representative
capacity make proposals to management. T-Mobile USA, Inc.
& CWA, AFL-CIO (“T-Mobile II”), 372 N.L.R.B. No. 4, 4–5
(Nov. 18, 2022). Applying that rule, the Board determined that
T-Voice was indeed a labor organization and that T-Mobile
violated Section 8(a)(2) by dominating T-Voice. Id. at 8–9. As
part of its remedy, the Board ordered T-Mobile to immediately
disestablish T-Voice and post a remedial notice at facilities
where T-Voice is or has been maintained. Id. at 9–10.
T-Mobile timely petitioned for review and the Board filed
a cross-application for enforcement of its decision.
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II.
Section 8(a)(2) of the Act makes it an unfair labor practice
for an employer “to dominate or interfere with the formation or
administration of any labor organization or contribute financial
or other support to it.” 29 U.S.C. § 158(a)(2). Section 2(5) of
the Act defines a “labor organization” as “any organization of
any kind, or any agency or employee representation committee
or plan, in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.” Id. § 152(5). A
group therefore qualifies as a labor organization if employees
participate; the group exists, at least in part, for the purpose of
“dealing with” the employer; and those dealings concern the
subjects listed in Section 2(5). See Electromation, 309
N.L.R.B. at 995–96. If an “employee representation committee
or plan” is involved, there must also be evidence that the
committee “is in some way representing the employees.” Id. at
996.
The Board has held that the statutory phrase “dealing with”
contemplates “a pattern or practice,” E.I. du Pont, 311
N.L.R.B. at 894, of bilateral conduct involving “proposals from
the employee [group] concerning the subjects listed in
Sec[tion] 2(5), coupled with real or apparent consideration of
those proposals by management,” Electromation, 309
N.L.R.B. at 995 n.21.
III.
T-Mobile contests four aspects of the Board’s decision in
T-Mobile II. The company argues that the Board’s revised
approach to the “group proposals” requirement is unreasonable
and inconsistent with Board precedent; that, even under that
revised approach, substantial evidence does not support the
11
Board’s determination that T-Voice is a labor organization; that
the Board deviated from its findings in T-Mobile I without
explanation; and that the Board failed to consider key facts
before ordering the disestablishment remedy. None of these
arguments warrants relief.
A.
We first address T-Mobile’s challenge to the Board’s
clarification of its “group proposals” requirement. We will
“abide [the Board’s] interpretation of the Act if it is reasonable
and consistent with controlling precedent.” Enter. Leasing Co.
v. NLRB, 831 F.3d 534, 543 (D.C. Cir. 2016) (alteration in
original) (internal quotation marks omitted) (quoting Brockton
Hosp. v. NLRB, 294 F.3d 100, 103 (D.C. Cir. 2002)).
T-Mobile’s argument concerns the Board’s interpretation
of what it means for a group of representative employees to
“deal with” an employer. The Board initially held that
proposals from individual members of such a group to
management are not sufficient to constitute “dealing” by the
group. After we raised questions about that approach and
remanded to the Board for clarification, the Board changed
course. In the decision on review, the Board held that an
employee group can “deal with” an employer where the
group’s individual members make proposals to management
while acting in a representative capacity, even if there is no
additional indication that the full group endorses the individual
member’s proposal. That conclusion fits comfortably with the
Act’s text and purpose, and with relevant Board precedent.
As the Board explained, “nothing in the text of Section
2(5) or its legislative history supports the notion that the
employee group must adopt proposals in any particular way
before those proposals may be found to be group proposals.”
T-Mobile II, 372 N.L.R.B. No. 4, at 6. Rather, the Act’s text
12
places no limit on how a group may “deal with” an employer.
In assessing the related question of what types of groups may
constitute labor organizations, the Board has similarly noted
Section 2(5)’s “broad” text and concluded that a group may
qualify “even if it lacks a formal structure, has no elected
officers, constitution or bylaws, does not meet regularly, and
does not require the payment of initiation fees or dues.”
Electromation, 309 N.L.R.B. at 993; see also NLRB v. Ampex
Corp., 442 F.2d 82, 84 (7th Cir. 1971) (“The statute has been
broadly construed, both with respect to absence of formal
organization and the type of interchange between the parties
which may be deemed ‘dealing.’”).
The Board’s approach also tracks the Act’s statement of
purpose, which includes the goal of protecting workers’ “full
freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment.” 29
U.S.C. § 151. As the Board has explained, Congress defined
the term “labor organization” “broadly” to achieve that goal,
aiming to “rid[] collective bargaining of employer-dominated
organizations” so that employees would retain “the freedom to
choose their own representatives.” Electromation, 309
N.L.R.B. at 993.
By contrast, as we noted in CWA, T-Mobile’s proposed
requirement that a group of representative employees must
adopt proposals in some particular fashion before conveying
them to management would seem an odd fit with the Act’s
broad text and purpose. See CWA, 994 F.3d at 663.
Accordingly, the Board was justified in choosing the contrary
course we ourselves identified in that opinion. If a group of
employee representatives otherwise satisfies Section 2(5)’s
requirements, the fact that the group operates by allowing its
individual members to make proposals to management rather
13
than through a more formal collective mechanism does not
make employer dominance of that group any less offensive to
the Act’s objective of ensuring that employees retain “the
freedom to choose their own representatives.” Electromation,
309 N.L.R.B. at 993. If the individuals are members of a group
that represents other employees and make proposals in their
capacity as members of that group, those proposals can
reasonably be regarded as proposals of the group for purposes
of the “dealing with” requirement.
As for precedent, the Board recognized that it had
previously found statutory dealing regardless of whether the
employee group formally adopted the proposals group
members submitted to management. In particular, the Board
explained—consistent with our analysis in CWA—that its
decision in Dillon Stores directly supports its revised approach.
T-Mobile II, 374 N.L.R.B. No. 4, at 6. There, members of an
employee group acted in a representative capacity when
presenting proposals to management during quarterly
meetings. Dillon Stores, 319 N.L.R.B. at 1250. But the group
did not collectively adopt the proposals beforehand. Id. at
1250–51. Still, the Board found statutory dealing because the
“proposals and grievances had been advanced collectively, on
a representational basis.” Id. at 1252 (emphasis added). As
we explained in CWA, the phrase “advanced collectively” in
Dillon Stores necessarily “means only that the proposals were
made ‘on a representational basis,’” because there was no
evidence that the group adopted individual representatives’
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proposals. 994 F.3d at 662. 1 As the Board also emphasized,
there is no contrary precedent. That is, neither the Board nor
T-Mobile has identified any case in which the Board “found
that an employee group that acted in a representative capacity
and made proposals to management was not ‘dealing with’ the
employer” and therefore was not a labor organization.
T-Mobile II, 374 N.L.R.B. No. 4, at 6; see also CWA, 994 F.3d
at 663.
T-Mobile’s counterarguments lack merit. The company
notably does not contend that the Act’s text or purpose supports
its preferred requirement that the employee group take some
formal action to endorse individual group members’ proposals
before group dealing can be found.
Instead, T-Mobile submits that the Board’s approach
conflicts with its precedent. T-Mobile describes several Board
precedents as involving groups that not only conveyed
proposals to management as representatives of other
employees but also took some additional action to adopt the
proposals as their own. T-Mobile Br. at 23–24 (discussing
Grouse Mt. Assocs. II, 333 N.L.R.B. 1322 (2001), enforced, 56
F. App’x 811 (9th Cir. 2003); Aero Detroit, Inc., 321 N.L.R.B.
1101 (1996), aff’d in part and rev’d in part, 144 F.3d 995 (6th
Cir. 1998); and Ryder Dist. Res., Inc., 311 N.L.R.B. 818
(1993)). T-Mobile’s description of those cases is accurate. But
that fact is no stand-in for what T-Mobile really needs: a Board
decision stating that such action is required for a group of
1
The Board explained that Reno Hilton, the other case we
identified in CWA, had found groups to be labor organizations when
the groups “or their members” made proposals to management.
T-Mobile II, 372 N.L.R.B. No. 4, at 7 n.15. But the Board also
observed that there was no explicit finding in Reno Hilton that the
group acted in a representative capacity, and so it relied primarily on
Dillon Stores. Id.
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representative employees to qualify as a statutory labor
organization. As we have explained, there is no such case.
T-Mobile also argues that if an individual group member’s
proposal made in a representative capacity can constitute a
“group proposal,” then the Board’s approach improperly
conflates two distinct Section 2(5) prerequisites: the “dealing
with” requirement and the requirement that, “if an ‘employee
representation committee or plan’ is involved,” there must be
evidence that the committee or plan is in some way
representing the employees, Electromation, 309 N.L.R.B. at
996. T-Mobile is incorrect. Although a group’s representative
nature might matter for multiple Section 2(5) requirements,
that does not somehow render the “dealing with” requirement
a nullity. As T-Mobile acknowledges, statutory dealing
requires more than a group or its members making proposals in
a representative capacity—the group must also engage in a
“pattern or practice” of bilateral conduct involving proposals
on “the subjects listed in Sec[tion] 2(5) coupled with real or
apparent consideration of those proposals by management.” Id.
at 995 n.21.
Moreover, T-Mobile has no persuasive answer to Dillon
Stores, which we already identified in CWA as affirmatively in
conflict with any formal group-adoption requirement.
T-Mobile instead submits that later Board precedents citing
Dillon Stores have failed to follow its reasoning. The only case
the company cites in support of that assertion is Simmons
Industries, Inc., 321 N.L.R.B. 228 (1996). There, after finding
that the employee committees at issue functioned in a
representative capacity, the Board proceeded to conduct a
separate inquiry into dealing and found the requirement
satisfied because the committees made proposals to
management by a “consensus process” or otherwise “discussed
and made proposals.” Id. at 254; see id. at 253. According to
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T-Mobile, the Board’s approach in Simmons indicates that,
even post-Dillon Stores, an individual member’s proposal is
not “imputed to the group simply because of its representative
structure.” T-Mobile Br. at 26. But like the other Board
precedents on which T-Mobile relies, Simmons merely
demonstrates that collective group action is one way of
satisfying the “group proposals” requirement for statutory
dealing. The decision does not state that such collective action
is necessary, much less overturn Dillon Stores. Nor does it
foreclose the view—which the Board has now explicitly
adopted—that group members making proposals in a
representative capacity is an alternative means to the same end.
B.
Next, we address T-Mobile’s challenge to the Board’s
finding that T-Voice is a labor organization under the Board’s
clarified approach to the “group proposals” requirement.
“We must uphold the judgment of the Board unless, upon
reviewing the record as a whole, we conclude that the Board’s
findings are not supported by substantial evidence, or that the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Int’l Union of
Electronic, Elec., Salaried, Mach. & Furniture Workers v.
NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994) (internal
quotations and citation omitted). Substantial evidence is
enough “relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Micro Pac. Dev. Inc. v.
NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999) (internal
quotation mark omitted) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Thus, we reverse the Board “only
when the record is so compelling that no reasonable factfinder”
could agree with the Board. Bally’s Park Place, Inc. v. NLRB,
646 F.3d 929, 935 (D.C. Cir. 2011) (internal quotation mark
17
omitted) (quoting United Steelworkers of Am. v. NLRB, 983
F.2d 240, 244 (D.C. Cir. 1993)).
Recall that, to find labor-organization status, the Board
needed to find that (1) T-Voice submitted group proposals (2)
on statutory subjects, (3) those proposals received real or
apparent management consideration, and (4) there was a
pattern or practice of such bilateral dealing. See E.I. du Pont,
311 N.L.R.B. at 894; Electromation, 309 N.L.R.B. at 995 n.21.
Substantial evidence supports the Board’s finding on each
requirement.
The Board cited six characteristic examples of statutory
dealing in support of its conclusion that T-Voice is a labor
organization. T-Mobile II, 374 N.L.R.B. No. 4, at 7–8. They
are: a September 2015 proposal regarding 45 dual monitors for
CSRs in the Dedicated Care Department; October 2015
proposals concerning the metrics used to measure CSR
performance; a March 2016 proposal for device emulators to
help CSRs troubleshoot problems with customers’ devices; a
September 2015 proposal that T-Mobile provide CSRs with a
script to aid in explaining phone exchanges to customers;
January 2016 proposals for trainings on coverage and device
compatibility, and network-specific talking points to help
CSRs address customer questions; and a January 2016 proposal
on updating the language in materials for training CSRs on the
company’s new device insurance plans. Id.
First, because the foregoing proposals “originated with [a]
T-Voice representative acting as a representative of fellow
employees,” the Board found that they all qualify as “group
proposals” under its clarified approach. Id. at 7. T-Mobile
does not dispute the Board’s finding that T-Voice members
acted in a representative capacity. Nor could it. As the Board
highlighted, the company calls employees serving in the
18
T-Voice program “T-Voice representatives,” an apt title given
that they are selected “from different shifts, call functions, and
call centers.” Id. at 5. Moreover, T-Voice “expressly solicited
‘employee’ or ‘Frontline’ pain points” from CSRs outside the
group. Id. at 8. In T-Mobile’s own words, T-Voice was “a
direct line of Frontline feedback for senior leadership.” Id. at
5. Taken together, this evidence establishes that T-Voice and
its representatives functioned in a representative capacity. And
because T-Voice representatives acted in that capacity when
making the six proposals the Board identified, those six
proposals were group proposals.
Second, the Board reasonably found that the proposals
addressed statutory subjects. As the Board explained, because
the proposals “concerned metrics, training, and equipment for
CSRs, they constituted proposals regarding conditions of
work.” Id. at 8; see Reno Hilton, 319 N.L.R.B. at 1156–57
(describing “equipment needed by employees” and “training of
new employees” as “employment conditions”); T-Mobile I,
368 N.L.R.B. No. 81, at 2 (acknowledging that “metrics” for
measuring CSR performance “related to employees’ terms and
conditions of employment”).
T-Mobile offers no contrary authority. Instead, it contends
that several of the proposals were intended to address customer
issues as opposed to conditions of work. But in this specific
context—where T-Mobile employs CSRs for the purpose of
addressing customer issues—the distinction is hardly a clean
one. As we explained in CWA, “[c]ustomer pain points
indirectly affect CSRs because they generate service calls and
customer irritation that the CSRs are responsible for handling.”
994 F.3d at 656. It makes sense, then, that proposals about
CSRs’ ability to address customer pain points also relate to
their conditions of work, particularly when CSRs’ performance
in resolving those pain points directly impacts other terms of
19
their employment, such as compensation and work schedules.
See T-Mobile II, 372 N.L.R.B. No. 4, at 2; A711. Take, for
example, the March 2016 device-emulator proposal. T-Mobile
insists that the proposal concerned customers’ experience, not
CSR working conditions. But requesting a device that would
aid CSRs in performing their jobs—and, in turn, potentially
improve their performance metrics—plainly concerns working
conditions in addition to improving the customer experience.
Third, substantial evidence supports the Board’s
determination that T-Mobile management gave real or apparent
consideration to each of the six proposals. See T-Mobile II, 372
N.L.R.B. No. 4, at 7–8. In response to the dual-monitors
proposal, T-Mobile “reviewed the costs of the monitors and
then accepted [the] proposal by supplying dual monitors to
CSRs in the Dedicated Care Department.” Id. at 7. The
proposals regarding CSR metrics, trainings on coverage and
device compatibility, and network-specific talking points were
forwarded from senior management to other managers for
discussion. Id. Indeed, T-Mobile eventually rejected one of
the metrics proposals (dropping the high and low scores on
customer-satisfaction surveys) via its response to a subsequent
pain-point submission. As for the device-emulator proposal,
T-Mobile “promised to provide an update” during the next
T-Voice monthly meeting. Id. at 7–8. And after receiving the
proposal for a script on phone exchanges, management added
the suggestion to “the list of things to relook at to ensure [the
company] ha[s] it properly covered.” A746; see T-Mobile II,
372 N.L.R.B. No. 4, at 8. Finally, in response to the proposal
to update the training material language on device insurance
plans, T-Mobile “edited the language accordingly.” T-Mobile
II, 372 N.L.R.B. No. 4, at 8.
T-Mobile’s objections to these findings lack merit. As a
threshold matter, the company takes issue with the Board’s
20
view that management consideration of proposals is enough to
satisfy the bilateral mechanism for dealing. Citing E.I. du Pont,
T-Mobile argues that dealing requires an employer’s
acceptance or rejection of a proposal by word or deed. But as
the Board notes in its decision, see T-Mobile II, 372 N.L.R.B.
No. 4, at 5, E.I. du Pont states only that a bilateral mechanism
“ordinarily entails . . . acceptance or rejection by word or
deed,” 311 N.L.R.B. at 894 (emphasis added). Such a response
is not a prerequisite for dealing under Board precedent, and
none of the authorities T-Mobile cites declares otherwise. See
EFCO Corp. v. NLRB, 2000 WL 632468, at *5 (4th Cir. May
17, 2000) (per curiam); Simmons, 321 N.L.R.B. at 254; Grouse
Mt. Assocs. II, 333 N.L.R.B. 1322, 1336 (2001); Reno Hilton,
319 N.L.R.B. at 1156; Dillon Stores, 319 N.L.R.B. at 1250.
Real or apparent consideration of proposals by management is
a reasonable bar for bilateralism and has support in Board
precedent. See, e.g., Electromation, 309 N.L.R.B. at 995 n.21;
Polaroid, 329 N.L.R.B. at 424–25.
T-Mobile next contends that, in any event, as to some of
the six proposals, management exhibited “mere awareness”
rather than real or apparent consideration. T-Mobile Reply at
17. We disagree. As the Board found, the record reflects that
T-Mobile “either forwarded the[] proposals to other managers
for their consideration, indicated that they would be
considered, or simply accepted them.” T-Mobile II, 372
N.L.R.B. No. 4, at 8. All of that conduct goes beyond
exhibiting awareness.
T-Mobile is correct that forwarding proposals for
management follow-up or promising future review is not the
same as direct evidence that management actually considered
the proposals. But circumstantial evidence of consideration—
real or apparent—is enough for the Board to reasonably draw
the required inference. See, e.g., Inova Health Sys. v. NLRB,
21
795 F.3d 68, 82 (D.C. Cir. 2015) (“Thus, circumstantial, but
substantial, evidence supports the Board’s finding . . . .”). The
record here contains at least such evidence for each of the six
proposals.
Fourth, substantial evidence supports the Board’s
conclusion that the six proposals satisfy the pattern-or-practice
requirement for dealing. An employee group is a labor
organization under Section 2(5) if it exists even “in part” for
the purpose of dealing with employers on statutory subjects.
29 U.S.C. § 152(5). So “if the evidence establishes . . . a
pattern or practice [of statutory dealing] or that the group exists
for a purpose of following such a pattern or practice, the
element of dealing is present.” E.I. du Pont, 311 N.L.R.B. at
894. This requirement is assessed by looking to both “what the
organization is set up to do and . . . what it actually does.”
Polaroid, 329 N.L.R.B. at 424–25 (citing Keeler Brass Co.,
317 N.L.R.B. 1110, 1113 (1995)).
Here, as the Board emphasized, T-Mobile’s own
statements and actions go a long way towards satisfying that
test. The T-Voice charter—written by T-Mobile—stated that
the organization’s mission was to “[e]nhance Customer[] and
Frontline . . . experience by identifying, discussing, and
communicating solutions for roadblocks for internal and
external customers,” and that its purpose was to “[p]rovide a
vehicle for Frontline feedback and create a closed loop
communication with [the] T-Mobile Sr. Leadership Team.”
T-Mobile II, 372 N.L.R.B. No. 4, at 1 (alterations in original).
To be clear: The terms “Frontline” and “internal customers”
refer to the T-Mobile employees that T-Voice members were
charged with representing. It would be difficult to imagine a
more direct statement—in the organization’s founding
document no less—that the group exists at least in part to deal
with the employer on behalf of other employees.
22
The Board identified subsequent communications between
T-Mobile and its employees that were consistent with
T-Voice’s charter. When T-Mobile announced the national
roll-out of T-Voice to CSRs, T-Mobile stated that T-Voice
comprises “Frontline Representatives”; that their “job is to
raise Frontline and customer pain points to ensure they are
resolved and then results are communicated back to the
Frontline”; and that CSRs should “raise issues by reaching out
to [their] T-Voice representatives.” T-Mobile II, 372 N.L.R.B.
No. 4, at 1–2 (alteration in original). As the Board put it,
T-Mobile “encouraged employees to raise any and all pain
points to their T-Voice representatives.” Id. at 2.
And after the company-selected T-Voice representatives
began their work, the company was sure to “announce[] to
employees that it had implemented suggestions solicited
through T-Voice and credit[] those changes to the T-Voice
‘team.’” Id. The starkest example stemmed from the dual-
monitor proposal. After accepting that proposal, T-Mobile
announced in its newsletter that the “T-Voice team was
instrumental in raising the need for dual monitors” and that
“[s]olving this pain point should lead to a happier, more
productive workplace.” A116. The Board also found that
T-Mobile credited T-Voice with, “for example, an employee
loyalty program that gave CSRs milestone anniversary gifts, a
charging station in the employee break room, and free Wi-Fi
access.” T-Mobile II, 372 N.L.R.B. No. 4, at 2.
In short, T-Mobile explicitly described T-Voice to its
employees as a representative organization for raising issues
about work conditions and then repeatedly acknowledged
T-Voice’s success in that intended role. Against that backdrop,
the Board reasonably concluded that the six examples of
dealing established a pattern or practice.
23
T-Mobile’s arguments to the contrary are unconvincing.
The company stresses that the six examples constitute a very
small overall percentage of the pain points submitted through
T-Voice. But it cites no Board precedent engaging in this type
of ratio analysis. E.I. du Pont, on which T-Mobile primarily
relies, acknowledges the distinction between a “pattern or
practice” and “isolated instances” of dealing—it does not
specify a test for differentiating between the two, let alone
endorse T-Mobile’s approach. 311 N.L.R.B. at 894. The same
is true for the other Board decisions T-Mobile cites. See Aero
Detroit, Inc., 321 N.L.R.B. 1101, 1113–14 (1996); Ryder
Distrib. Res., 311 N.L.R.B. 814, 818 (1993).
The Act’s text further justifies the Board’s refusal to
indulge T-Mobile’s approach: It covers any organization that
exists “in whole or in part” to deal with employers on statutory
subjects. 29 U.S.C. § 152(5) (emphasis added). If T-Mobile’s
argument prevailed, an employer could avoid the consequences
of dominating a labor organization by simply adding a non-
dealing element to the organization large enough to distort the
ratio in its favor.
Comparing this case to the facts of Stoody Co., 320
N.L.R.B. 18 (1995), T-Mobile also argues that six examples of
dealing should be insufficient as an absolute matter. In that
case, the Board concluded that a single instance of statutory
dealing that did not coincide with the employee group’s
announced purpose was an “isolated error,” not a pattern or
practice of dealing. Id. at 20–21. That situation bears no
resemblance to this one. As the Board explained, far from one-
off dealing that could be regarded as an “error,” “the T-Voice
program expressly solicited ‘employee’ or ‘Frontline’ pain
points over a period of roughly 6 months,” and T-Mobile
repeatedly and explicitly announced that the purpose of
24
T-Voice was in part to improve CSR working conditions.
T-Mobile II, 372 N.L.R.B. No. 4, at 1–2, 8.
We do not foreclose the possibility that in another case,
with a different record, six instances of dealing might be
insufficient to support a finding that an organization engaged
in a pattern or practice of dealing within the meaning of the
Board’s precedents. But the full record here—including
T-Mobile’s own repeated statements—sufficiently supports the
finding that T-Voice existed at least “in part” to engage in a
pattern or practice of statutory dealing.
C.
T-Mobile separately asserts that the Board acted arbitrarily
and capriciously because it reversed without explanation its
conclusion in T-Mobile I that none of the six examples
amounted to dealing, “either because they concerned purely
customer issues (troubleshooting devices, a script about phone
exchanges, setting up coverage, and talking points) or they
prompted no response from management (changes to employee
metrics).” T-Mobile Reply at 13. This argument
mischaracterizes what the Board found in T-Mobile I. There,
the Board stated that it was “unnecessary to pass on whether
the pain points transmitted by T-Voice concerned Sec. 2(5)
statutory subjects.” T-Mobile I, 368 N.L.R.B. No. 81, at 6 n.21.
We recognized as much in our prior opinion: “Because the
Board found T-Voice did not ‘deal with’ T-Mobile as required
for it to be a ‘labor organization,’ the Board did not address
whether any pain points submitted by T-Voice concerned
conditions of work or other statutory subjects.” CWA, 994 F.3d
at 657–58. And as for the proposal on changes to metrics, the
Board simply noted in the facts section of the decision that one
manager testified that no follow-up action took place—the
Board did not make a finding as to that fact. T-Mobile I, 368
25
N.L.R.B. No. 81, at 5. Because T-Mobile I does not contain
the findings the company claims were reversed in T-Mobile II,
there is no inconsistency between the decisions, and
T-Mobile’s argument that the Board neglected to explain the
claimed inconsistency necessarily fails.
D.
Finally, T-Mobile contests the Board’s order requiring the
disestablishment of T-Voice. T-Mobile offers two reasons
why the disestablishment remedy is improper. First, it
contends that the Board failed to consider that, in February
2016, the company “expressly limited” T-Voice to addressing
customer issues and “has not engaged in any alleged dealing
with management since.” T-Mobile Br. at 44. After that date,
the argument goes, T-Voice ceased to function as a labor
organization, so disestablishing T-Voice as currently
constituted would not effectuate the purposes of the Act.
Second, T-Mobile claims that the Board failed to account for
the harm disestablishment would cause its business.
We lack jurisdiction to consider these arguments. Section
10(e) of the Act states that “[n]o objection that has not been
urged before the Board . . . shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.” 29 U.S.C.
§ 160(e). This provision furthers “the salutary policy . . . of
affording the Board opportunity to consider on the merits
questions to be urged on review of its order.” Marshall Field
& Co. v. NLRB, 318 U.S. 253, 256 (1943). The “critical
question” in applying Section 10(e) is therefore “whether the
Board received adequate notice of the basis for the objection.”
Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir.
2016) (quoting Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 143
(D.C. Cir. 1999)). Although we have not required that the
26
ground for an objection be stated explicitly in a party’s written
objections filed with the Board, we have required, at a
minimum, that the ground be “evident by the context in which
[the objection] is raised.” Consol. Freightways v. NLRB, 669
F.2d 790, 794 (D.C. Cir. 1981).
T-Mobile did not put the Board on notice of the specific,
fact-intensive arguments it now advances on appeal. Before
the Board, T-Mobile took exception to the ALJ’s
disestablishment remedy in only the broadest of terms,
claiming the remedy had “no support in the record, statute or
case law.” SA90–91. Similarly vague objections have been
held to satisfy Section 10(e) only when additional context
provided the Board adequate notice, such as where the party’s
briefing to the Board or the nature of the disputed issues
clarified the nature of its objection. See, e.g., NLRB v. Blake
Constr., Co., 663 F.2d 272, 283 (D.C. Cir. 1981); Camelot
Terrace, Inc., 824 F.3d at 1090; see also May Dep’t Stores Co.
v. NLRB, 326 U.S. 376, 386 n.5 (1945). No such illuminating
context is present here.
IV.
For the foregoing reasons, we deny T-Mobile’s petition for
review and grant the Board’s cross-application for
enforcement.
So ordered.
RANDOLPH, Senior Circuit Judge, dissenting: I respectfully
dissent for the reasons stated by Board Member Ring in his
dissent. See T-Mobile USA, Inc., 372 N.L.R.B. No. 4, slip op.
at 10–13 (Nov. 18, 2022).