In a case before the U.S. Court of Appeals in Washington D.C., the National Labor Relations Board (NLRB) is claiming a program that solicits employee feedback created a union because the company discussed the issues with the employees (T-Mobile v. NLRB, Nos. 22-1310 and 23-1002). 

Specifically, the case concerns a program called T-Voice that TMobile established as a vehicle for its employees to bring work-related issues to its attention.  Through that program, T-Mobile selected employee representatives to solicit and obtain employee feedback on—and to meet with management to discuss and address—workplace problems impacting employees and customers.

Since 2009, the union, Communications Workers of America , CWA, has attempted to organize T-Mobile CSRs but has not filed a representation petition. In 2015, T-Mobile launched T-Voice to “Enhance Customer and Frontline experience by identifying, discussing, and communicating solutions for roadblocks for internal and external customers. Provide a vehicle for Frontline feedback and create a closed-loop communication with T-Mobile Sr. Leadership,” with T-Voice representatives at each call center. T-Mobile emailed all CSRs: You can raise issues by reaching out to your T-Voice representatives. Prospective T-Voice representatives were told that they would be “responsible for gathering pain points from your peers.”

In a case before the NLRB filed by the CWA, a split NLRB panel deemed the T-Voice program unlawful because workers shared suggestions to improve working conditions with management, and sometimes the company "outright accepted" these recommendations. The majority panel ordered T-Mobile to disestablish the T-Voice program.  Under a Republican Board in 2019, the NLRB ruled that the T-Voice program didn't violate the NLRA because it wasn't a company union.  Under the Democratic Board, it reversed itself and said it was.

In effect, the argument was that T-Mobile was attempting illegal actions to undermine worker organizing at the company by creating this feedback program designed for customer service representatives. 

By having the program, the NLRB contended that T-Mobile was creating on its own and recognizing a defacto union of customer service representatives in violation of the NLRA.  "T-Mobile ignores the lingering impact its months-long unlawful domination would have even if T-Voice had ceased being a labor organization — and does not claim to have publicly repudiated, or taken steps to mitigate, that serious violation," the NLRB said.

T-Mobile responded by saying that the T-Voice program is actually like a suggestion box and referenced former NLRB member John F. Ring's dissent, which said there wasn't a "pattern or practice" of workers in T-Voice sharing proposals with the company.   

If the NLRB ruling were to be upheld, and T-Mobile was required to “deestablish” T-Voice, it would mean, in effect, that there would be no effective mechanism to hear employee suggestions other than through the CWA, giving the union a leg up to organizing by distorting the situation.  In other words, the union is the only legitimate vehicle for employee feedback.

If the NLRB continues going down this path of creating “unions” from employee programs, it will create an environment for most organizations that would be untenable.  With recruitment, retention, and competition in today’s labor market, the last thing organizations need is the government making it difficult to do basic jobs like recruitment.  Further, although not specifically discussed yet, employee resource groups (ERG) created for diversity purposes could also be considered the creation of illegal unions or illegal under the NLRA.  Therefore, employer differentiation will be more difficult and costly for recruitment and retention if every employer now looks the same from the outside.  Unionization is at its lowest in years, and there is a reason for it.  The government should not pick sides but let market forces play out.

Source:  Law360 6/21/23