T-Mobile USA, Inc. v. NLRB

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

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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

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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

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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

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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

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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

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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

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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

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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

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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).