D.C. Circuit Sends T-Mobile ‘Group Proposal’ Case Back to NLRB

April 16, 2021, 6:26 PM

A federal appeals court punted back to the National Labor Relations Board a dispute over whether telecommunications giant T-Mobile USA Inc. unlawfully set up a shadow labor organization to undermine support for the Communications Workers of America.

In sending the case back to the NLRB, U.S. Circuit Judge JudithWilsonRogers in Washington asked the board to answer a simple question: What constitutes a protected “group proposal” from employees to management?

The case hinges on the difference between a group proposal, protected under the National Labor Relations Act, and more general feedback from workers to management. CWA argued that T-Mobile had set up an organization called “T-Voice,” which the union said qualified as a labor organization under the NLRA, with the effect of preempting CWA’s efforts to organize call center workers.

An NLRB administrative law judge initially ruled in favor of the union, but it was overturned by the Republican-controlled NLRB in 2019. The board found that T-Mobile’s T-Voice program didn’t constitute interference, in part because CWA’s organizing efforts had already been underway for years.

In its Friday ruling, the U.S. Court of Appeals for the District of Columbia Circuit said the board’s decision was supported by “substantial evidence,” but that the panel didn’t sufficiently address the difference between a collective proposal from workers and less formal communication between workers and management.

“The Board had not previously 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,” Rogers wrote.

One of the CWA attorneys listed on the case is Jennifer Abruzzo, President Joe Biden’s nominee for NLRB general counsel. Oral arguments took place on Jan. 14, when Abruzzo was already serving on the Biden transition team but before she was nominated. If confirmed, she would likely have to recuse herself from the matter, pursuant to agency ethics rules.

In other cases cited by CWA, the board had recognized labor organizations without examining whether the proposals raised by group representatives had been formally approved by rank-and-file members, Rogers said.

“The Board’s reliance on a ‘group proposals’ requirement therefore broke new ground,” she wrote. “The court is left uncertain about what the record must show for the Board to find that an organization made group proposals, as opposed to engaging in mere brainstorming. Is it enough that an employee representative makes a proposal while acting in a representative capacity?”

Joining in the ruling were U.S. circuit judges David Tatel and Harry Edwards.

The case is Communications Workers of Am., AFL-CIO v. NLRB, D.C. Cir., 20-1044, 4/16/21.

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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