Communications Workers of America v. NLRB ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2021 Decided April 16, 2021
No. 20-1044
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
T-MOBILE USA, INC.,
INTERVENOR
On Petition for Review of an Order of
the National Labor Relations Board
Glenda L. Pittman argued the cause for petitioner. With
her on the briefs was Jennifer Ann Abruzzo.
Gregory Lauro, 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,
Assistant General Counsel, and Kira Dellinger Vol,
Supervisory Attorney.
Mark Theodore was on the brief for intervenor T-Mobile
USA, Inc. in support of respondent.
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Before: ROGERS and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This case concerns an
organization called “T-Voice,” which the wireless phone
provider T-Mobile established in its customer-service call
centers. The Communications Workers of America (“CWA”)
petitions for review on the ground that T-Voice is an improper
“company union” unlawfully dominated and supported in
violation of Section 8(a)(2) of the National Labor Relations
Act. We grant the petition and remand the case to afford the
Board an opportunity to reconcile two lines of its “dealing
with” precedent.
I.
T-Mobile operates 17 call centers in the United States. At
each center, T-Mobile employs customer service
representatives (“CSRs”) who handle calls from customers.
Since 2009, CWA has attempted to organize T-Mobile CSRs.
During the organizing campaign, CWA has filed a number of
unfair labor practice charges, some of them successful. See,
e.g., T-Mobile USA, Inc., 369 N.L.R.B. No. 50 (Apr. 2, 2020);
T-Mobile USA, Inc., 365 N.L.R.B. No. 15 (Jan. 23, 2017). To
date, CWA has not filed a representation petition for an
election among the CSRs.
T-Mobile launched T-Voice at six of its call centers in
January 2015 and expanded the program to cover all T-Mobile
call centers later that year. The charter for the group defined
its mission: “Enhance Customers and Frontline experience by
identifying, discussing, and communicating solutions for
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roadblocks for internal and external customers. Provide a
vehicle for Frontline feedback and create a closed loop
communication with T-Mobile Sr. Leadership Team.” Gen.
Couns. Ex. 94 at T0001053. The charter stated that there would
be three T-Voice representatives at each call center, who would
serve a six-month term that was later extended to nine months.
When T-Voice was rolled out in June 2015, a T-Mobile
Executive Vice President emailed 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.
Gen. Couns. Ex. 2. Similarly, a manager at T-Mobile’s call
center in Springfield, Missouri told prospective T-Voice
representatives that they would be “responsible for gathering
pain points from your peers in Springfield, representing those
issues to local and national leadership teams, and tracking and
communicating resolution back to the team.” Gen. Couns. Ex.
38.
As presaged by the charter and email, a key task for T-
Voice representatives was to collect complaints from CSRs and
communicate them to management. Customer pain points
indirectly affect CSRs because they generate service calls and
customer irritation that the CSRs are responsible for handling.
By contrast, employee pain points directly concern terms and
conditions of employment such as bonus compensation and
work schedules. T-Voice representatives collected pain points
through a variety of different methods. During “table days,”
T-Voice representatives set up a table and talked to fellow
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CSRs about new devices, promotions, or pain points. There
were also physical suggestion boxes and email addresses to
which CSRs could submit pain points. T-Voice representatives
also collected pain points through team meetings, especially a
type of meeting called a “knowledge check,” during which
representatives met with small groups of CSRs and checked
their awareness of developments such as the release of a new
phone.
T-Voice representatives entered the collected pain points
into a Microsoft Sharepoint database substantially as conveyed
by the submitter, subject to minor grammar or clarifying edits.
The Sharepoint database was used to track pain points and they
were assigned to managers for consideration and tagged
according to their status, such as whether action had been
taken. In addition, T-Voice representatives participated in
various meetings: local meetings for planning the T-Voice
representatives’ schedule, and regional and national meetings
by telephone from multiple call centers. Regional meetings
were primarily focused on sharing best practices for local T-
Voice programs but might occasionally have involved
discussions of pain points. One email referred to a regional
meeting discussion of “what people think about” a particular
change that T-Mobile made to its calculation of call resolution
time, a metric used to evaluate CSRs’ performance. Gen.
Couns. Ex. 90, at T0005060. T-Mobile used several metrics to
assess CSRs’ performance, such as whether the customer
called back shortly following the call, and CSRs’ metrics
affected their bonus compensation and ability to work their
preferred schedule.
National meetings each included a focus group run by a T-
Mobile manager, who circulated agendas and post-meeting
summaries. For example, a pre-meeting email asked T-Voice
representatives to “review and begin getting feedback from
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your sites” and “come ready to share your site ideas.” Gen.
Couns. Ex. 91, at T0001383. At the August 2015 national
meeting, the agenda included a discussion of changes T-Mobile
was making to a customer-satisfaction metric, which was
identified as follow-up on a top pain point from July.
Presentation slides from the meeting explained that certain
categories of surveys would no longer be included in CSRs’
customer-satisfaction scores. A T-Voice newsletter circulated
two days after the meeting stated that “T-Voice has been a
machine in listening to our Frontline teams and ensuring their
voices are heard” and stated that “T-Voice has worked . . . to
help improve the [customer-satisfaction survey] experience.”
Gen. Couns. Ex. 90, at T0000662.
T-Mobile also held in-person T-Voice summits in October
2015 and May 2016. These two-day summits were attended by
all T-Voice representatives plus many senior managers. The
2015 summit included break-out sessions where T-Mobile
Vice Presidents each conducted a focus group with 10 to 15 T-
Voice Representatives on topics including “Employee
Engagement / T-Mobile Culture,” “Metrics,” “Systems /
Tools,” and “Frontline Readiness.” Id. at T0004960. Notes
from the metrics focus group indicate that T-Voice
representatives made proposals for changes to calculations of
CSR metrics, such as dropping the high and low scores on
customer-satisfaction surveys and that calls less than 45
seconds should be excluded from calculation of another metric.
The 2016 summit included T-Voice representatives identifying
an onerous process for restoring customer access to locked
accounts as a top pain point for discussion. After the summit,
T-Mobile announced that it was “fixing the process.” Gen.
Couns. Ex. 91, at T0001351.
CWA filed an unfair labor practices charge in February
2016, amended in June 2016. The Board’s General Counsel
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filed a complaint alleging, as relevant, that: (1) T-Voice was a
labor organization within the meaning of Section 2(5) of the
National Labor Relations Act, (2) T-Mobile supported T-Voice
in violation of Section 8(a)(2), and (3) its operation of T-Voice
constituted solicitation of grievances during an ongoing
organizing campaign and an implied promise to remedy those
grievances, in violation of Section 8(a)(1).
An ALJ held a four-day trial and ruled, as relevant, that T-
Voice was a labor organization T-Mobile dominated and
supported in violation of Section 8(a)(2), and that T-Mobile’s
operation of T-Voice constituted solicitation of grievances and
implied promises to remedy those grievances during an
ongoing organizing campaign. T-Mobile filed exceptions. On
September 30, 2019, a three-member Board essentially
reversed the ALJ, ruling that T-Voice was not a labor
organization and its operation did not violate Section 8(a)(2).
Further, given the years-long duration of CWA’s organizing
campaign, T-Mobile’s creation of T-Voice did not warrant an
inference that it would reasonably have the tendency to erode
employee support for union organizing. 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 petitions for review of
the Board’s decision. This court has jurisdiction under 29
U.S.C. § 160(f).
II.
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.” Bob’s Tire Co. v. NLRB, 980 F.3d 147, 153
7
(D.C. Cir. 2020) (quoting Int’l Longshore & Warehouse Union
v. NLRB, 890 F.3d 1100, 1107 (D.C. Cir. 2018)). Although this
standard of review is deferential, the court “will not ‘rubber
stamp Board decisions,’ and . . . will remand where a Board
order ‘reflects a lack of reasoned decisionmaking.’” Tramont
Mfg., LLC v. NLRB, 890 F.3d 1114, 1119 (D.C. Cir. 2018)
(alterations omitted) (first quoting Consolidated Commc’ns,
Inc. v. NLRB, 837 F.3d 1, 7 (D.C. Cir. 2016); and then quoting
Penrod v. NLRB, 203 F.3d 41, 46 (D.C. Cir. 2000)). A Board
decision does not rest on reasoned decisionmaking if “it fails
to offer a coherent explanation of agency precedent.”
NBCUniversal Media, LLC v. NLRB, 815 F.3d 821, 823 (D.C.
Cir. 2016).
A.
Section 7 of the Act gives employees “the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157. Section 8(a)(1) provides that it
shall be an unfair labor practice “to interfere with, restrain, or
coerce employees in the exercise” of those rights. 29 U.S.C.
§ 158(a)(1). An employer’s statement to an employee violates
Section 8(a)(1) if “considering the totality of the
circumstances, the statement has a reasonable tendency to
coerce or to interfere with those rights.” Progressive Elec., Inc.
v. NLRB, 453 F.3d 538, 544 (D.C. Cir. 2006) (internal
quotation marks omitted) (quoting Tasty Baking Co. v. NLRB,
254 F.3d 114, 124 (D.C. Cir. 2001)).
“Soliciting grievances is not in itself an unfair labor
practice, but implicit or explicit promises to correct grievances
may violate section 8(a)(1) because ‘the combined program of
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inquiry and correction’ suggests that ‘union representation is
unnecessary.’” Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d
92, 103 (D.C. Cir. 2000) (alteration omitted) (quoting Reliance
Elec. Co., 191 N.L.R.B. 44, 46 (1971)). Thus, “[a]n employer
who has not previously solicited grievances but who begins to
do so in the midst of a union campaign creates a ‘compelling
inference’ that the employer is ‘implicitly promising’ to correct
the problems.” Id.The Board has addressed the effect of a lapse in time
between organizing activities and an employer’s solicitation of
grievances. In Leland Stanford Jr. University, 240 N.L.R.B.
1138 (1979), the union had filed representation petitions, and
elections were held in 1975. Id. at 1139. After objections to
the elections remained pending in 1977, the employer
administered an employee opinion survey. Id. at 1139–41. The
Board explained that “solicitation of employee grievances by
an employer is not illegal unless accompanied by an express or
implied promise of benefits specifically aimed at interfering
with, restraining, and coercing employees in their
organizational effort.” Id. at 1143 (quoting ITT Commc’ns, 183
N.L.R.B. 1129, 1129 (1970)). Indeed, “for a considerable
period of time, both prior and subsequent to the distribution of
the survey, there was no active campaigning” by either the
union or the employer, and “no election was scheduled or
imminent.” Id. at 1138 n.1. The case was therefore
distinguishable from those in which “the timing of the
employer’s conduct made it reasonable to infer that the actions
were taken for the purpose of eroding employee support for the
union.” Id. Consequently, the Board found that administration
of the survey did not violate Section 8(a)(1).
The Board relied on Leland Stanford Jr. University,
concluding that when T-Voice was implemented there was no
outstanding representation petition and that “the record
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contains no evidence of the Union’s organizational efforts
among customer service representatives at that time.” Bd. Dec.
at 9. The record therefore did not “warrant an inference that
the T-Voice program was undertaken for the purpose of
eroding employees’ support for the Union.” Id. CWA objects
that the Board ignored record evidence that there was active
organizing ongoing, including a January 2016 meeting at one
call center to rebut union communications and various unfair
labor practices charges filed by CWA.
The Board’s decision was supported by substantial
evidence. As to the January 2016 meeting, the Board
acknowledged that such a meeting occurred. Although the
Board did not discuss a document highlighted by CWA —
talking points for the meeting stating that CWA had spent a
great deal of time and money attempting to organize T-Mobile
employees — that document is insufficient to undermine the
Board’s finding that the creation of T-Voice was not aimed at
interfering with union organizing. So too with the unfair labor
practice charges; although they furnish some evidence of
ongoing organizing, they do not show that the Board lacked
substantial evidence for its conclusion. CWA’s organizing
began in 2009, and there was a lack of record evidence that
organizing was especially active when T-Voice was created six
years later. Instead, there was substantial evidence for the
Board’s conclusion that T-Voice’s solicitation of pain points
would not reasonably have the tendency to undermine support
for union representation.
B.
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). A “labor
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organization” is defined in section 2(5) of the Act to mean “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).
The parties’ arguments concerning the alleged Section
8(a)(2) violation rest on dueling lines of Board precedent
concerning the definitional requirement that a “labor
organization” must exist for the purpose, at least in part, of
“dealing with” an employer concerning conditions of work. In
NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), the Supreme
Court reasoned that “dealing with” encompassed more than
simply “collective bargaining,” id. at 210–13, and therefore
held that employee committees, which “made proposals and
requests respecting such matters as seniority, job classification,
job bidding, working schedules . . . and improvement of
working facilities and conditions,” were labor organizations
within the meaning of the Act, id. at 213–14, 218. Since Cabot
Carbon, Board decisions have attempted to draw the boundary
between organizations engaged in “dealing with” an employer
(which the employer therefore may not give support to or
interfere with), from management practices that permissibly
facilitate communication between employers and their
employees. Essential to the Board’s decision here was its view
that an organization does not engage in “dealing with” an
employer unless it makes “group proposals” to the employer;
proposals from individual members of the group would not be
sufficient. The Board grounds that view in four of its post–
Cabot Carbon cases.
First, in Electromation, Inc., 309 N.L.R.B. 990 (1992), the
Board found that five “action committees” constituted labor
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organizations and had been dominated by the employer. Id. at
997. The Board observed that the only purpose of the
committees was “to address employees’ disaffection
concerning conditions of employment through the creation of
a bilateral process involving employees and management in
order to reach bilateral solutions on the basis of employee-
initiated proposals.” Id. The Board described such a bilateral
process as “the essence of ‘dealing with’ within the meaning of
Section 2(5).” Id.In E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893(1993), the Board further developed the concept of a “bilateral”
process. Id. at 894. Here, the employer had set up seven
committees (six on safety and one on employee fitness) and
held safety conferences. Id. at 893. The Board concluded that
the committees constituted “labor organizations” dominated by
the employer in violation of Section 8(a)(2), but that the
conferences were lawful information-gathering activities. Id.The Board described a spectrum of activities, ranging from
bargaining to dealing to no-dealing and articulated three types
of permissible non-dealing activity: brainstorming ideas,
gathering information, and operating a “suggestion box.”
The term “bargaining” connotes a process by which
two parties must seek to compromise their differences
and arrive at an agreement. By contrast, the concept
of “dealing” does not require that the two sides seek
to compromise their differences. It involves only a
bilateral mechanism between two parties. That
“bilateral mechanism” ordinarily entails a pattern or
practice in which a group of employees, over time,
makes proposals to management, management
responds to these proposals by acceptance or
rejection by word or deed, and compromise is not
required. If the evidence establishes such a pattern or
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practice, or that the group exists for a purpose of
following such a pattern or practice, the element of
dealing is present. However, if there are only isolated
instances in which the group makes ad hoc proposals
to management followed by a management response
of acceptance or rejection by word or deed, the
element of dealing is missing.
Just as there is a distinction between “bargaining” and
“dealing,” there is a distinction between “dealing” and
no “dealing” (and a fortiori no “bargaining”). For
example, a “brainstorming” group is not ordinarily
engaged in dealing. The purpose of such a group is
simply to develop a whole host of ideas. Management
may glean some ideas from this process, and indeed
may adopt some of them. If the group makes no
proposals, the “brainstorming” session is not dealing
and is therefore not a labor organization.
Similarly, if the committee exists for the purpose of
sharing information with the employer, the committee
would not ordinarily be a labor organization. That is,
if the committee makes no proposals to the employer,
and the employer simply gathers the information and
does what it wishes with such information, the element
of dealing is missing, and the committee would not be
a labor organization.
Likewise, under a “suggestion box” procedure where
employees make specific proposals to management,
there is no dealing because the proposals are made
individually and not as a group.
Id. at 894 (emphases added) (footnotes omitted).
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The Board in E.I. du Pont concluded that the committees
did not fall within any of the non-dealing safe havens because
they “involve[d] group action and not individual
communication.” Id. For example, the fitness committee
proposed to management that tennis courts be constructed,
which management rejected as too costly. Id. at 895. By
contrast, the Board ruled that the employer’s safety
conferences, in which “employees shared their experiences on
the topic” and “stated what they thought the ideal situation
would be,” constituted permissible brainstorming. Id. at 896.
In reaching that conclusion, the Board noted there was no
evidence the conference participants were acting in any sort of
representative capacity for other employees. Id. at 897 & n.17.
Third, the Board pointed to EFCO Corp., 327 N.L.R.B.
372 (1998), where it ruled that three committees were
impermissibly dominated labor organizations, while a fourth
committee, for screening employee suggestions, was a
permissible information-gathering device. Id. at 372. Relying
on E.I. du Pont and Electromation, the Board concluded that
the first three committees engaged in “dealing with” the
employer because they all made recommendations or proposals
to the employer concerning issues within their ambit. Id. at
375–76. The suggestion screening committee was different.
The employer had established a program under which “all
employees were encouraged to submit suggestions and were
informed that they would be paid $5 for each ‘valid’
suggestion.” Id. at 374. The purpose of the screening
committee was to “receive all suggestions, make
recommendations on especially good suggestions, reject
‘frivolous or otherwise invalid’ ones, and submit remaining
suggestions to the appropriate management group.” Id. “In
practice,” however, “the Committee did not make decisions
about the implementation of suggestions but merely decided
which ones were not frivolous and forwarded them to the
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relevant management group.” Id. The Board found that the
suggestion screening committee, unlike the others, “did not
formulate proposals or present them to management.” Id. at
376. Rather, it “performed a clerical or ministerial function
which facilitated the [employer’s] consideration of suggestions
made by employees,” essentially operating as “a screening
portion of an employee ‘suggestion box’ program.” Id.Because the committee did not engage in “weeding out
proposals it d[id] not wish to advance and recommending
others . . . , a process which would, in essence, put the
committee in the position of making proposals to
management,” the Board concluded that it was not a labor
organization within the meaning of the statute. Id.Fourth, in Polaroid Corp., 329 N.L.R.B. 424 (1999), the
Board considered whether an “Employee-Owners’ Influence
Council” was a labor organization under the Act. Id. at 424.
Management selected applicants to be on the council and led
its meetings on topics such as the type of insurance benefits
available to employees. Id. at 426–27. During meetings of the
council, “members would ‘throw out’ ideas relating to the topic
under consideration,” the ideas would be discussed, and finally
a poll would be taken to “determine the majority sentiment.”
Id. at 427. The Board concluded that the council was “not
limited to a unilateral mechanism of brainstorming,
information sharing, suggestion box, or survey of the employee
population,” but instead “functioned, on an ongoing basis, as a
bilateral mechanism in which that group of employees
effectively made proposals to management, and management
responded to these proposals by acceptance or rejection by
word or deed.” Id. at 429. The Board rejected the employer’s
view that the council “presented only proposals of its
individual members, rather than group proposals,” pointing
specifically to the employer’s frequent use of polling. Id. at
429–30. Finding that the council was a “bilateral mechanism”
15
and that it acted in a representative capacity for other
employees, the Board concluded that it was a labor
organization within the meaning of the Act. Id. at 431–36.
The upshot of these cases is that an organization is not
engaged in “dealing with” an employer unless the organization
makes “group proposals,” which would require some process
for adopting or advancing them as proposals of the
organization. CWA principally relies on two other Board cases
that impose no “group proposals” requirement: Dillon Stores,
319 N.L.R.B. 1245 (1995), and Reno Hilton Resorts Corp., 319
N.L.R.B. 1154 (1995). In Dillon Stores, management
convened quarterly meetings of an employee committee at
which elected employee representatives asked questions or
made comments. 319 N.L.R.B. at 1246. Management
responded either during the meeting, or in a follow-up report if
necessary. Id. The committee did not have any process
through which it came to consensus or agreement; instead,
individual committee members made proposals by asking
questions. Id. at 1250–51. The Board noted that employee
members of the committee “act[ed] in the capacity of
representatives of other employees.” Id. at 1250. In
concluding that the committee was a labor organization, the
Board stated that “most, if not all, of the employee
representatives’ proposals and grievances concerned the
employees’ terms and conditions of employment; those
proposals and grievances had been advanced collectively, on a
representational basis; and [the employer] did entertain those
proposals and grievances.” Id. at 1252. That record, the Board
concluded, was sufficient to establish the requisite “dealing.”
Id. The Board now maintains that Dillon Stores is consistent
with a “group proposals” requirement because it refers to the
proposals being “advanced collectively.” Resp’t Br. 28. But
in context, that phrase means only that the proposals were made
“on a representational basis,” which is not clearly
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distinguishable from the activities of the T-Voice
representatives. Likewise, in Reno Hilton the Board found
“quality action teams” to be labor organizations where “the
QATs or their members made proposals or requests . . . .” 319
N.L.R.B. at 1156 (emphasis added).
The cases relied upon by the Board support its view that in
order to be a labor organization within the meaning of Section
8(a)(2), the organization must make “group proposals.” In E.I.
du Pont, the Board wrote that dealing “ordinarily entails a
pattern or practice in which a group of employees, over time,
makes proposals.” 311 N.L.R.B. at 894 (emphasis added). In
EFCO Corp., the suggestion-screening committee was found
not to be a labor organization because it “did not formulate
proposals or present them to management” but instead
provided ministerial processing of “suggestions made by
individual employees.” 327 N.L.R.B. at 376. And in Polaroid
Corp., the Board emphasized that the employer had taken
repeated polls of the committee to determine “majority
sentiment,” which was “tantamount to the group itself voting
and presenting the majority view as its group proposal.” 329
N.L.R.B. at 429.
Nonetheless, 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.
Each of the organizations in the cases upon which the Board
relies were found to be labor organizations within the meaning
of the Act, except for the suggestion screening committee in
EFCO Corp. See Polaroid Corp., 329 N.L.R.B. at 429; EFCO
Corp., 327 N.L.R.B. at 375–76; E.I. du Pont, 311 N.L.R.B. at
895; Electromation, 309 N.L.R.B. at 997. Indeed, in
Electromation, the Board explained that a group “may meet the
statutory definition of ‘labor organization’ even if it lacks a
17
formal structure, has no elected officers, constitution or
bylaws, does not meet regularly, and does not require the
payment of initiation fees or dues.” 309 N.L.R.B. at 994.
Further, the “group proposals” requirement is in tension with
the cases cited by CWA in which the Board found there was a
labor organization without examining whether employee
proposals had been embraced by the group through any formal
process. See Dillon Stores, 319 N.L.R.B. at 1251–52; Reno
Hilton, 319 N.L.R.B. at 1156–57.
The Board’s reliance on a “group proposals” requirement
therefore broke new ground. 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? That standard is suggested by the
result in Dillon Stores, 319 N.L.R.B. at 1250–52, and by the
fact that the Board noted the E.I. du Pont safety conference
participants were not acting in a representative capacity, 311
N.L.R.B. at 897 n.17. It is also arguably suggested by the
Board’s brief before this court, which states that T-Voice
representatives participated in meetings and focus groups not
as representatives, but as “individual employees sharing their
personal ideas with management.” Resp’t Br. 17, 32. But if an
employee making a proposal while representing a group of
other employees is sufficient to constitute a “group proposal,”
then there might be a substantial-evidence problem given that
the members of T-Voice were titled “representatives” and told
to gather input from other employees at their call centers prior
to their participation in meetings. Perhaps more is required,
such as a formal vote adopting the proposal as one of the
“group.” That, however, could be difficult to reconcile with
the Board’s statement that a labor organization can “lack[] a
formal structure” and have no “constitution or bylaws.”
18
Electromation, 309 N.L.R.B. at 994. Further, such a rule might
be easily circumvented and undermine the function of Section
8(a)(2), to prohibit “employer interference in setting up or
running employee ‘representation’ groups” that “actually rob[]
employees of the freedom to choose their own representatives.”
Id. at 993.
Perhaps the Board means to cut a more fact-intensive
course between these extremes. Determining whether a group
is a labor organization is generally the type of Board finding to
which the court will defer “in light of the Board’s claim to
expertise in the area of labor relations.” Napleton 1050, Inc. v.
NLRB, 976 F.3d 30, 39 (D.C. Cir. 2020) (quoting Constellium
Rolled Prods. Ravenswood, LLC v. NLRB, 945 F.3d 546, 550
(D.C. Cir. 2019)); accord NLRB v. Peninsula Gen. Hosp. Med.
Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994). At this point,
however, the Board needs to identify what standard the Board
has adopted for separating “group proposals” from proposals
of employee representatives, like T-Voice representatives.
Accordingly, the court remands this matter to the Board for
further proceedings concerning the alleged Section 8(a)(2)
violation.